Ermentrout v. Stitzel

Opinion by Mr. Justice McCollum, The defendant having succeeded to the title conveyed by the Friendship Building and Savings Association to Mary A. Althouse had a clear right to an alley, in accordance with the plan made by Kendall Bros, in 1883, from Clymer street to the alley connecting with the Hill road at a corner of Josiah Dives’ property. This right was defined in and secured by the reservation in the deed to her grantor and in the latter’s deed in trust for her. It does not appear to have entered her mind prior to the institution of this suit that the Kendall alley was abandoned by the plaintiff or by any owner of a lot or lots abutting upon it; nor that she was invested by any act of theirs or either of them with authority to exclude them from it in the rear of her property. Her rights in the alley were the same as the plaintiff’s and other owners of lots abutting thereon. As they could not deprive her of the use of it in the rear of their lots she could not prevent them from using it in the rear of hers. The correspondence between the litigants in the summer preceding the issuance of the writ in this case shows that they understood their rights and obligations in reference to the alley were mutual, and that they recognized it as an existing way in the maintenance of which they had a common interest. Neither of them claimed an abandonment of it, or denied to the other the use of it. Their principal contention appeared to relate to a fence and gates erected by the defendant in the alley in the rear of her lot, and she claimed that they were placed there for the protection of her property and were constructed so as to afford reasonable facilities to the lot owners for the use of the alley, while the plaintiff claimed that they constituted an unreasonable obstruction to his use of it and amounted to a practical denial of his rights in it. The learned court below, regarding this contention as the material one in the case, submitted it to the jury in a clear, adequate and as we think correct charge, reserving, however, the questions raised by the defendant’s sixth and seventh points. The jury found from the evidence in relation to the use of the alley by the lot owners and the work done by them upon it that the obstruction complained of was an unreasonable one. [544] The questions raised by the points referred to were, (1) whether there was any evidence of the commission of a trespass by the defendant, and (2) whether the plaintiff was estopped by his deed from the building association, and his neglect to fence the alley from asserting any right in the latter. So much of the seventh point as alleges that the plaintiff never “ recognized the right of defendant through his property ” need not be considered, because it is a statement which plainly disregards the un contradicted evidence in the case. The learned court below upon consideration of the reserved questions concluded that the plaintiff had no right in the alley, and entered judgment non obstante veredicto. The grounds of this conclusion were that his acceptance of a deed which contained no reference to the alley but included the land on which it was located by the Kendall plan, together with his alleged encroachment upon it and his neglect to remove the apple tree in it, constituted an abandonment of it. In this conclusion we think there was error. The plaintiff accepted the deed with actual as well as constructive notice and knowledge of the existence and location of the alley. The deed gave him no right in the alley which interfered in the slightest degree with the rights of the other lot owners therein. He neither did nor claimed anything under the deed which he or they regarded as prejudicial to their rights. There was no permanent or material encroachment upon the alley by the plaintiff or anything done or omitted by him indicative of an intention to abandon it, or to deny to the defendant and the other lot owners the use of it for the purposes to which it was dedicated. The evidence in relation to the grape arbor and the apple tree did not show an obstruction which would have justified the defendant or any other lot owner in closing the alley.' The former is the only obstruction placed in it by the plaintiff, and it affords no justification of or excuse for the act of the defendant: Bellas v. Pardoe, 15 Atl. Rep. 662. The apple tree was in the alley when the plaintiff bought his lots, and as he was not requested to remove it the fair inference is that it was not regarded as a serious obstruction. It is worthy of note in this connection that there was no reference in any of the defendant’s points to the grape arbor and apple tree as constituents of the defense, nor request for instructions based on the evidence in relation [545] to them. Besides, it is well to remember that the other lot owners have the same rights in the alley that the litigants have, and that the latter cannot exclude the former from it. In support of the views we have taken concerning the effect of the plaintiff’s acceptance of a deed which contained no reference to the alley, it is sufficient to cite Ferguson’s Appeal, 117 Pa. 426. The specifications of error are sustained. The judgment is reversed and judgment is now entered on the verdict in favor of the plaintiff and against the defendant for one dollar and costs.