Helwig v. Miller

Opinion by Head, J., The plaintiffs and the defendant are the owners respectively of adjoining tracts of land. The bill avers and the answer admits that the land of the former was subject to the servitude or easement of a private right of way in favor of the latter to enable its owner to reach the public highway. The record discloses no express grant of such [174] easement from which we could determine its extent or limitations. In the absence of such grant, the character of the use itself acquiesced in by the parties through a long period of years becomes available as evidence of the extent of the grant, actual or presumed, on which the easement rests. The learned court below has found as a fact that for more than thirty years immediately prior to 1895 a pair of bars was maintained across this way at the point where it opened into the public road. During all of that period the right of the defendant or his predecessors to use the way was freely conceded, but was enjoyed and exercised subject to such inconvenience as arose from the duty to open and close the bars when passing to and from the public road. In the year last named these bars were removed or disappeared, and from that time until 1908 the way was entirely open and unobstructed. This period of time, however, was not sufficiently long to create any new easement in favor of the defendant or to enlarge the one theretofore existing. In 1908 the plaintiffs, for the protection of their stock and property, erected a swinging gate on the same location formerly occupied by the pair of bars referred to. The defendant, contending that the erection of such gate was a legal obstruction to the enjoyment of his easement, refused to close it when passing through and denied any obligation on his part to close it. Plaintiffs then filed this bill and the learned judge below, further finding that the gate in question was “an ordinary swinging gate, opening either way, easily operated, and not an unreasonable obstruction to the free use by the defendant of his private right of way,” entered a decree requiring the defendant, his servants, etc., to properly close said gate when using it and restraining the use of the private right of way in any other manner. The defendant appeals. Under the facts found it is clear that the plaintiffs remained the absolute owners of the soil traversed by the private way. This being so, they could use it as they chose so as not to interfere with the proper and reasonable [175] use by the defendant of his dominant right. In Hartman v. Fick, 167 Pa. 18, we have a case practically on all fours with the present one. After stating the facts there conceded, which are precisely those here either admitted or found, the Supreme Court went on to say: “This left no question undisposed of except that of the legal right of the owner of the land to protect his fields by such a gate or other structure as should not unreasonably interfere with the use of the way. The easement was only for passage. The land remained the property of the plaintiff and he had a right to use it for any purpose that did not interfere with the easement. To do this it might be necessary under some circumstances to inclose the way with the field over which it passes, and if this is done with a reasonable regard to the convenience of the owner of the easement it affords him no just ground of complaint. The tendency of our legislation is in this direction, and such is also the fair effect of Connery v. Brooke, 73 Pa. 80.” In Kohler v. Smith, 3 Pa. Superior Ct. 176, this court followed the doctrine of the cases just cited, and in the opinion by our brother Beaver adopted the following statement of the principle taken from the treatise of Mr. Washburn on The American Law of Easements, page *195: “It seems to be now settled that, if the landowner is not restrained by the terms of the grant of a right of way across his lands for agricultural purposes, he may maintain fences across such way, if provided with suitable bars or gates for the convenience of the owner of the way.” These authorities seem to us to rule the case before us and relieve us of any necessity to further elaborate the doctrine. The able counsel for the appellant seeks to distinguish them from the case at bar because, as he argues, this was not merely a right of way used by the owner of farm land to enable him to reach a highway, but it was freely used by strangers who had occasion to visit the premises of the appellant for purposes of business or pleasure. But such strangers had no right in themselves to the use of this way, To so argue would be to deny that [176] which is averred in the bill and admitted in the answer, to wit, that the easement was but for a private right of way. Such persons, therefore, other than the owner of the dominant tenement, who lawfully used it, must have found their right rooted in his as an incident to his necessary and reasonable enjoyment of what belonged to him. Otherwise they would be without right and trespassers. The decree is affirmed.