No. 175 March Term, 1979, Appeal from the Decree of the Superior Court at No. 929 April Term, 1977, reversing the decision of the Court en Banc and the Court of Common Pleas of Westmoreland County at No. 771 of 1976 in Equity. No. 176 March Term, 1979, Appeal from the Decree of the Superior Court at No. 930 April Term, 1977, reversing the decision of the Court en Banc and the Court of Common Pleas of Westmoreland County at No. 772 of 1976 in Equity.
Gary Selway, Roland T. Keddie, Greensburg, for appellants.
John N. Scales, Kenneth L. Murray, Scales & Shaw, Greensburg, for appellees.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
This case arose as an attempt by the appellees, Brady and Spark, to enjoin the appellants' use of a 30-foot strip of land as an easement appurtenant to their land. The sole issue for review is whether the appellants have a right-of-way easement over the land of the appellees Brady and Spark. We agree with the trial court's conclusion that the appellants do have a right of way and therefore we reverse the holding of the Superior Court, 269 Pa. Super. 31, 409 A.2d 48, and reinstate the decree of the Westmoreland County Court of Common Pleas in No. 771 and 772.
The facts are not disputed. All the parties are ultimate purchasers from common grantors, John Filapose et ux. and John Novacek et ux. All parties take out of a single large tract of land originally owned by the common grantors. The contested 30-foot-wide right-of-way easement is comprised of two equal, adjoining 15-foot-wide easements and has as its center line the common boundary line of the Spark and Brady properties. Brady and Spark took title subject to the following provision which appears in the deed from the common grantors to Brady and in the chain of title to Spark. The clause is identical in each case except for the substitution of Northerly for Southerly:
Excepting and Reserving unto the parties of the first part herein, their heirs and assigns, the full, free liberty and right at all times hereafter forever, to have and use a passageway 15 feet in width along the Southerly side of the land hereinabove described for any and all purposes connected with the use and occupation of other land now owned by the parties of the first part adjoining the land hereby granted.
The parcels today owned by the appellants were, at the time the conveyances were made to Brady and Spark, part of the land retained by the grantors and, hence, were adjoining lands.
The conveyances to the appellants, Yodanza et al., granted to each grantee a right-of-way easement 50 feet wide which is an extension of the 30-foot easement in question, the two appearing to make one straight right of way. None of these deeds makes reference to the 30-foot easement, but each contains a standard appurtenances clause.*fn1
Turning first to the effect of the reservation clause which appears in the deeds from the common grantors to the appellees, we conclude that, by virtue of this clause, the lands of the appellees are made servient tenements burdened by a 30-foot right of way. The dominant tenement, as ...