Kraut's Appeal

The opinion of the court was delivered, by Williams, J. Under the deed of Frederick Fox, of July 14th 1859, the appellant is clearly entitled to a passage-way, from the premises thereby conveyed, over and across the grantor’s remaining ground to Marlborough street, for the purposes specified in the conveyance. The right of way is expressly granted, but its precise location and limits are not fixed and defined by the deed. Looking to the general terms of the grant and the condition of the ground at the date of the deed, the reasonable construction and inference would seem to be, that the parties intended that the right should be exercised over that part of the ground which was 68 then vacant. Rut it was competent for them to define the location and determine the limits of the passage-way, which were undefined by the deed, by subsequent agreement, use and acquiescence. When, therefore, the appellant’s grantor, on the 14th of August, 1860, sold and conveyed the adjoining vacant ground to Matthew Craig, with covenant of special warranty, without subjecting it to the burden of the right of way previously granted and conveyed to the appellant, the fair presumption is, that he intended that Craig should take the land discharged from the burden of the easement, and that it should be fastened on the improved land of which he was still the owner. The evidence shows that, soon after the date of this conveyance, Fox agreed to open an entry in his house leading out to Marlborough street, for the purpose of enabling the appellant to exercise the right of way to which he was entitled by the terms of his deed. That he subsequently opened an entry through his house to Marlborough street in order to provide a passage-way as agreed, and that the appellant used it during the lifetime of Eox, for the purposes expressed in the deed, is satisfactorily shown by the testimony of Louis Holsworth, corroborated, as it is, by the testimony of Philip Rothfuss, John Miller, and Edward P. Nace, one of the defendant’s witnesses. Under the circumstances, it is manifest that Frederick Fox, if he were living, could not with any justice or equity, insist that the right of way granted to the appellant should be exercised over the lot which he subsequently sold and conveyed to Craig; and if not, then the appellees have no right to insist that the burden of the servitude shall be imposed on Craig, who bought the property from their ancestor and paid him a full consideration for it. Under the pleadings and proofs in this case the appellant is clearly entitled to the right of way over the appellees’ lot, as fixed and defined by their ancestor, and as used in his lifetime. The court below, therefore, erred in awarding an injunction against Craig, and dismissing the bill as' to the appellees. The bill should have been dismissed as to Craig, and a perpetual injunction awarded as against the appellees who claim title as heirs of Frederick Fox, to the lot on which he imposed the easement claimed by the appellant. And now, October 17th 1872, it is ordered, adjudged and decreed, that the decree of the court below be, and the same is hereby reversed and set aside; and it is now further ordered, adjudged and decreed, that the appellant’s bill of complaint be dismissed as against Matthew Craig, one of the defendants named therein, and that a perpetual injunction do issue against the appellees, the other defendants named in the said bill, as prayed for by the appellant, the complainant therein; and that the costs of this appeal be paid by the appellees, William Fox, Rachel Fox, John Nace, and Sarah Nace.