Appeal from judgment of Court of Common Pleas of Allegheny County, No. 844 of 1967, in case of Kellogg-American Realty, Inc. v. S. Co., Inc., formerly known as Scaife Company.
Bernard Eisen, Robert E. McKee, Jr., and Berkman, Ruslander, Pohl, Lieber & Engel, for appellant.
Martin Lubow, and Rosenberg & Lubow, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Watkins, J., dissents.
[ 214 Pa. Super. Page 490]
In 1961, defendant conveyed a portion of its property to plaintiff by a general warranty deed. In this deed, defendant also granted certain easements upon the parcel retained by it.
There was at all times a catch basin for the collection of surface and storm water beginning on plaintiff's property which connected to a fifteen inch subsurface terra cotta sewer line extending approximately 300 feet through the defendant's property.
Thereafter, defendant conveyed the property under which the fifteen inch pipe is located by a general warranty deed to the present owner.
In 1965, the present owner cut off and rendered unusable the fifteen inch pipe. Plaintiff demanded that defendant defend plaintiff's right to the use of the
[ 214 Pa. Super. Page 491]
sewer line. Defendant refused this demand on the ground that plaintiff did not have the right to such easement.
Plaintiff then constructed a new pipe line at a different location on other property at a cost of $4710.00 and brought this action for damages based on defendant's failure to defend. The lower court found for the plaintiff and entered judgment. This appeal followed.
The decision of the lower court was based upon a finding that the words in the deed granted an easement to plaintiff to use the sewer pipe running under the parcel originally retained by defendant. Both the lower court and the parties failed to consider, however, whether suit was properly brought against ...