Laurence T. Himes, Jr., Griest, Mangan & Himes, York, for appellant.
Donald L. Reihart, York, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., concurs in the result.
[ 242 Pa. Super. Page 538]
This is an appeal from an order of the Court of Common Pleas of York County, Civil Action-Equity Division. The Court en banc decreed (reversing the Chancellor) that plaintiff has a right to use a road passing through the land of defendants. Defendants have appealed.
In seeking to establish the right-of-way, plaintiff-appellee, Margaret V. Hassler, relies on a deed dated April 15, 1885 by which Henry Boyer conveyed a portion of his property in North Codorus Township to Peter Gerber. By a series of subsequent conveyances, title to this tract vested in Mrs. Hassler. Title to the portion retained by Boyer ultimately vested in Harold and Barbara Mummert, defendants-appellants.
The dispute before us is in the construction to be given the following clause in the deed:
"Subject Nevertheless the said Henry Boyer Reserves a Road through Said tract of land now conveyed to Said Peter Gerber by this Indenture to pass through at all Seasons of the year at or near where the old Road is now. And further the said Peter Gerber also Reserves a right to pass through the lands of Henry Boyer at all Season of the year at or near where the old Road now is."
[ 242 Pa. Super. Page 539]
The Mummerts contend, first, that the attempted easement to Peter Gerber fails because he owned nothing from which a right could be reserved. The court below properly rejected this argument.
It is well established that a court of equity has jurisdiction to reform a deed on the ground of mutual mistake or unilateral mistake with the knowledge of the other party. It is necessary that the mistake as well as the actual intent of the parties be clearly shown. Rusciolelli v. Smith, 195 Pa. Super. 562, 171 A.2d 802 (1961).
The mistake here, of course, is the choice of the verb "reserve" to refer to the granting of the right to Peter Gerber. Gerber, as grantee, could not reserve a right in land he didn't own. The use of the word, read in context, raises an ambiguity, which must be resolved by examining the intention of the parties, with the grantee receiving the benefit of any doubt. Merrill v. Manufacturers Light & Heat Co., 409 Pa. 68, 185 A.2d 573 (1962). The choice of identical terms to describe both easements indicates a purpose to establish identical and reciprocal rights. It is indisputable that Boyer wished to grant Gerber the right of way, and his mistaken use of the word "reserves" should not frustrate his intention.
Defendants contend further that even assuming the creation of a right, such right was personal to Gerber and expired upon his death. They point to the absence of ...