pointment under which they received absolutely the one-third of the estate was limited to "the estate devised and bequeathed" to her, but it cannot prevail here. The implied interest or gift to the children of Mrs. Sommerville arises from the language of the will just quoted, wherein it is declared that the part or share "devised" to them shall revert to the testator's surviving heirs in the event of her children dying without issue. In other words, the children were to have the "part or share" (the one-third) of the testator's estate bequeathed to them unless they died without issue, which, as we have seen, must be construed to occur within the lifetime of Mrs. Sommerville. There is no ground for the implication that they were to take a life interest in that "part or share" of his es tate. Such inference might have been drawn, had the testator provided that, "in case all her children depart this life without issue, the part or share of this my last will and testament devised to my daughter, Mary F. Sommerville, shall revert to and be equally divided among my surviving heirs." But as will be observed by reference to this clause of his will, it was not the share or part of his estate given to his daughter, which was a life interest only, but the part "devised to the said children of my daughter Mary," that the children were to have unless they departed this life without issue. The natural and necessary implication from the language employed by the testator, therefore, is that the children of Mrs. Sommerville were to take the corpus of the one-third of the estate as an absolute gift in case they survived their mother. This was manifestly the intention of the testator, and no rule of testamentary construction in this jurisdiction prevents it being carried into effect.

James M. Sommerville and Maxwell Sommerville were the only children of Mary Sommerville, and were both living at the time of their mother's death. The one-third part of the testator's estate, the income from which she had received since the testator's death, was then vested in her two sons in possession. Thereafter they had the right to the absolute control and possession of their gift. The trustees were therefore relieved from any further duties relative to the property, and hence there was no longer any necessity for continuing the trust.

a deed, the grantee takes a fee in the additional 10 feet in front of his lot abutting on the street, but there is no covenant on the part of the grantor that the grantee shall have an easement in the 10 feet in front of the adjoining land abutting on the street.

2. Where a grantor conveys land by a deed calling as a boundary a street actually opened to the width of 50 feet, but shown on the city plan as of the width of 60 feet, though the grantee takes a fee in the additional 10 feet, there is no covenant of an easement on the part of the grantor in the 10 feet in front of the adjoining lots, so that when the street is actually widened to 60 feet the grantor is entitled to damages for the 10 feet in front of land still owned by him.

3. Where a city lays out a street on the land of a private owner, there is no implication of a Covenant against the owner to give the land to the public without compensation.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Robert W. Fitzell and Joseph Fitzell against the city of Philadelphia. From an order dismissing exceptions to report of the referee, plaintiffs appeal. Reversed.

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

M. J. O'Callaghan, for appellants. John H. Maurer, Asst. City Sol., George E. Fili, and John L. Kinsey, City Sol., for appellee.

DEAN, J. In 1832 Third street, of Philadelphia, was plotted on the city plan and confirmed by the court of quarter sessions as 50 feet wide. In one of the districts now forming part of the consolidated city it was placed on a borough plan as 50 feet wide. In 1860 and 1886 it was confirmed as of this width in the present plan of the city. In 1888 Robert W. and Joseph Fitzell, these plaintiffs, became the owners in fee of a tract of land along Third street from Ontario to Westmoreland street, subject to the easement; the street being then plotted 50 feet wide between Ontario and Westmoreland streets. They also opened between these streets two narrower streets, Wensley and Thayer, running at right angles to, and opening into, Third street. While the Fitzells were still owners of the whole tract, the city added 10 feet to the width of Third street, plotting it on the city plan as 60 instead of 50 feet, and actually opened the street that width in July, 1901. In 1897 the Fitzells had conveyed five

(211 Pa. 1)

FITZELL et al. v. CITY OF PHILADEL

PHIA.

(Supreme Court of Pennsylvania. March 6, 1905.)

DEED CONSTRUCTION-COVENANTS-EASE-
MENTS OPENING STREET-DAMAGES.

1. Where a street actually opened to the width of 50 feet, but plotted on the city plan as of the width of 60 feet, is called for as a boundary in

ferent owners, the five lots aggregating on Third street 250 feet. This, however, still left in the Fitzells the ownership in fee of 188 feet fronting on Third street, and cornering on Third and Westmoreland streets, not touched by any express description of the lots conveyed in 1897.

The street was not widened or the 10 feet appropriated by the city until July, 1901. "The time of the actual opening [see Whitaker v. Phoenixville Borough, 141 Pa.

827, 21 Atl. 604] is the time the law fixes for estimating the damages." The plaintiffs, being still at the date of the opening the actual owners in fee of the 188 feet fronting on Third street, claimed damages for the appropriation of the 10 feet for that width. The learned referee finds as a fact that they are still the owners of that strip, 188 feet by 10 feet, but he asks: "Have they, by reason of the conveyances in 1897 of the lots fronting on Third street, plotted to be widened, impliedly covenanted with their grantees to give them an easement on Third street, sixty feet wide, between Ontario and Westmoreland?" And he answers: "Such

was the implied covenant. Therefore plaintiffs have practically sustained no damages because the city appropriated the ten feet as an easement for the population of the whole city"—that is, as to damages, he invokes in favor of the city the doctrine of de minimis.

Assuming, as the referee properly assumes, that by bounding the lots on Third street, then plotted on the plan, implied an easement 60 feet wide-the width of the plotted street in front of their lots-it also implied much more. It carried with it the covenant of an easement 60 feet wide on the entire street between Ontario and Westmoreland streets. The lots conveyed, with but slight difference in the words naming Third street as the boundary, are substantially the same,

as

concerns that line. They are, "situate on the east side of Third street parallel with and along the east side of Third street," and so with each description. There is no reservation of any part of the street by the grantors, nor is there mentioned any fixed monument, natural or artificial, which would stop the right-angle line of the lot at the outer line of Third street. Clearly, under all our authorities, the implied covenant in the conveyance was the fee to the middle of Third street as then opened, for it is immaterial how wide the street was at the date of the conveyance by the description in the deedwhether the street was 50 feet wide, as then opened, or 60 feet, as plotted in the city plan; the grantees took a fee in the 10 feet not yet opened, and to the middle of the opened street, which was only as yet 50 feet wide. The only thing that could be said is that the fee in the 50-foot street is already subject to the public easement, while that in the 10 feet was not yet so subject, so far as concerned actual use, but might be so subject in the future.

The leading case in this state enforcing this general principle is Paul v. Carver, 24 Pa. 207, 64 Am. Dec. 649, decided in 1855. It is followed down to Higgins v. Sharon Borough, 5 Pa. Super. Ct. 92, decided in 1897, probably in number 20 cases, all of them adhering strictly to the same principle. The large number of cases since are to be ascribed to two causes: First, Paul v. Carver was apparently inconsistent with two earlier

cases (Union Burial Ground Society v. Robinson, 5 Whart. 18; Bellinger v. Union Burial Ground Society, 10 Pa. 135), thus making the law confusing to the minds of the profession; and then, second, Paul v. Carver only held that the fee to the middle of the highway passed to the grantee, unless the intention of the grantor to limit it by the outer line of the highway clearly appeared. Many attempts to so limit it by evidence dehors the deed in subsequent cases were made, but the rule has finally settled down to this: that, to so limit, there must be an express reservation, or the lines must be stopped short of the middle of the street or highway by a permanent natural or artificial monument. This brings us to the question involved in this issue.

Where a traveled street has been opened 50 feet wide, but is plotted on the city plan as 60 feet, and the grantors convey 5 lots, aggregating 252 feet, fronting on the street at the north end thereof as a boundary line, and still own 188 feet fronting on the same street at the south end thereof, what is the grantors' implied covenant as to the width of the street on the part still owned by them? As we have seen, their covenant with their grantees is that, as to their lots, they take a fee to the middle of the street, and that they front on a highway 50 feet wide, for it is there of that width before their eyes. But is there an implied covenant on the part of the grantors that the street is 60 feet wide in front of their unsold lots? Taking the admitted facts in the case, we cannot see that the covenants extended further than that Third street was 50 feet wide from Ontario to Westmoreland street. That was its width when the deeds were delivered. The covenant was, in effect, that the grantors would not obstruct it for that width, or otherwise interfere with their grantee's free use of it. The street is there now of that width. The easement of the grantees, as part of the public, has been in no way restricted. But the street was plotted on the city plan 10 feet wider. This fact, however, in no sense implied a covenant that the city would some time in the future add 10 feet to the width. The city was not bound to actually widen the street after plotting it; nor did the grantors impliedly covenant that it would do so. This was beyond their power. Their covenant does not embrace any act of the municipality in the future. It may abandon its apparent intention to at some future date appropriate the additional 10 plotted feet as part of the public easement, or it may vacate the whole street. But the grantors have not expressly or impliedly covenanted that it would do either. Except for the legislation which deters them from building on the 10-foot strip after it has been plotted on the city. plan, it is as fully theirs as before. Why should their covenant with their grantees that the latter should have an easement on

Third street 50 feet wide be enlarged to include 10 feet they never had conveyed to anybody? We do not concur with the learned referee in his statement that the philosophy of the law warrants the implication of a covenant with the grantees of an easement to them on the 10 feet of land unsold by the grantors. The law is plainly otherwise, and supports the contention of the appellee that where an easement or other right is not expressed, and is sought to be implied, as attached to the grant of the fee, the same must clearly appear from the intention of the parties, as shown by the terms of the grant, the surroundings of the property, and the other res gestæ of the transaction. This principle is recognized in Union Burial Ground Society v. Robinson, 5 Whart. 18, and has never been doubted. Many remarks have been made in subsequent cases as to other features of this case inconsistent with the judgment in that case, but the controlling principle has never been questioned. Paul v. Carver expressly recognizes it as good law, but Justice Lewis distinguishes it from the case before him. And in Cox v. Freedley, 33 Pa. 124, 75 Am. Dec. 584, Justice Woodward distinguishes the case from the one before him. In no case that we have found has the principle, as we have quoted it, been overruled or departed from. The implied easement sought to be attached to this grant cannot be found in the surroundings of the parties, for they got an easement on the whole of Third street 50 feet wide in both directions. They got the fee of the 10-foot strip in front of their lots as then plotted on the plan. Any implied covenant of an easement beyond would be wholly unwarranted by anything in the nature of the grant or the surroundings at its date. The cases cited by the referee as by analogy warranting the implication of an easement on the 10 feet still owned by the grantors are not applicable. Brooklyn Street, 118 Pa. 640, 12 Atl. 664, 4 Am. St. Rep. 618, was the case of a lot bounded by a street laid out, but not yet opened. It was held that the grantor's implied covenant was of a street corresponding with the one in the deed. Here a 50-foot street corresponding with the one in the deed, actually opened. In Whitaker v. Phoenixville Borough, 141 Pa. 327, 21 Atl. 604, the owner had conveyed an adjoining lot fronting on an avenue 30 feet distant from the center line of the same. It was held that under this description the fee of the bed of the street remained in the grantor at the time of the assessment of damages, but, as he had conveyed a frontage on the street which affected the value of the bed of the street, that should be considered in the assessment of damages. In the case before us there was no conveyance of a frontage on the unsold lots. In Gamble v. Phila., 162 Pa. 413, 29 Atl. 739, the unopened street was designated as an existing

street, and it was held that the grantor had estopped himself from denying the existence of such a street so designated by his conveyance. And so with other cases cited by appellee; they have no application to these peculiar facts. As suggested by the referee, there is no case in which it is held that the grantor, by a conveyance of certain lots fronting on one end of a public street, has thereby, by implication, practically granted to the public an easement of an additional 10 feet on the other end of a street where he had sold no lots. As is said by Justice Green in Brooklyn Street, 118 Pa. 640, 12 Atl. 664, 4 Am. St. Rep. 618: "When a municipal government lays out streets on the land of a private citizen, it is not the act of the owner in any sense, and hence there is no necessity for an implication of a covenant against the owner to give his land to the public without compensation." The city had appropriated 1,888 square feet of plaintiffs' land for a public street. Assume that, under the statute, they cannot build upon it, since it was put upon the city plan, and thereby swell damages, but they have not lessened its value by private grant of an easement. Their damages are substantial and capable of compensation, and on that basis they should be assessed.

The Judgment of the court below is reversed, and it is directed that a rehearing be held before the referee, and plaintiffs' damages be assessed in accordance with this opinion.

(211 Pa. 86)

PIRO v. SHIPLEY et al. (Supreme Court of Pennsylvania. March 6, 1905.)

INJUNCTION-INTERFERENCE WITH EASEMENT.

1. Where complainant's right is clear, and there is no serious dispute as to any material fact, equity will restrain a threatened interference with the exercise of such right.

2. Plaintiff filed a bill to enjoin a change in the location of an outbuilding in which it had a common easement with defendants. There was no apparent necessity for the change, and it would involve a most material alteration in plaintiff's easement. Held, that equity would enjoin further new construction, and decree the restoration of the outbuilding to where it formerly stood.

Appeal from Court of Common Pleas, Philadelphia County.

Bill by Pasquale Piro against Samuel R. Shipley and others. From a decree for plaintiff, defendants appeal. Affirmed.

Biddle, P. J., on the trial, found the facts to be as follows:

"(1) That the plaintiff owns the property on the southeast corner of Ninth and Christian streets, known as 848 Ohristian street; having obtained it by deed dated October 28, 1899, from one D'Amico, who acquired it by deed dated October 2, 1889, from one D'Ambrosio, who had acquired it by deed dated September 28, 1889, from the heirs of Thom

as Prentiss, deceased, who in his lifetime obtained it from Stephen Smith by deed dated May 21, 1867; Smith having acquired it, with additional adjoining property, from one David S. Brown, by deed dated April 4, 1846.

"(2) That in all the deeds referred to since the one dated May 21, 1867, made by Stephen Smith and wife to Thomas Prentiss, the description in the deeds have been uniform and alike; the respective grantors describing the property situate at the corner of Ninth and Christian streets as containing in front on Christian street fifteen feet, and in depth along Ninth street thirty-two feet, and also contained the following grant: "Together with the free and common use, right, liberty and privilege of the privy and privy well situated on the premises adjoining on the east, and the right of ingress, egress and regress of, in, to and from the same as the same is now used, occupied and enjoyed. Together with the ways, waters, water courses, rights, liberties, privileges, hereditaments and appurtenances whatever thereunto belonging or in anywise appertaining.'

"(3) That the property acquired by Stephen Smith by deed dated April 4, 1846, was a lot of ground containing twenty feet in front on Christian street, and extending of that width in depth along Ninth street ninety-five feet. That at that time there was erected on the lot of twenty feet acquired by him, and fronting on Christian street, a threestory brick building, with a two-story brick back building, both having a width of fifteen feet, and extending southwardly from Christian street of the above width, thirty-two feet-leaving on the east side of the building, as a part of the lot or piece of ground so conveyed to Smith, five feet of ground that extended southwardly from Christian street the full depth of the building, thirtytwo feet, and beyond it sixty-three feet, in conjunction with the other ground obtained by Smith from Brown by that deed-which gave Smith a lot twenty feet in width, and in depth parallel with Ninth street, beyond his brick building, at the corner, of sixtythree feet, making his entire lot of ground ninety-five feet in depth.

"(4) That nine days after acquiring the corner building, of fifteen feet, extending back thirty-two feet, and the lot of ground upon which said building was erected, of twenty feet by ninety-five feet, Stephen Smith obtained from one Edward Johnson, by deed dated April 13, 1846, a lot or piece of ground (adjoining his previously acquired lot on the east) described as situated on the south side of Christian street, at the distance of twenty feet east of Ninth street, and extending of that width in depth southwardly ninety-five feet, upon which there was a frame building, which was afterwards torn down or removed between April, 1846, and his conveyance to Smith in 1867.

"(5) That between April, 1846, and Smith's

conveyance to Thomas Prentiss, in 1867, a period of more than twenty-one years, Smith removed the frame building upon the lot of ground he acquired of Edward Johnson, and erected two three-story brick buildings, now known as 844 and 846 Christian street, constructing a separate western wall for 846 Christian street close to, if not directly up and against, the eastern wall of the brick building of the corner property acquired from Brown, known as 848 Christian street, which was then Smith's property, but now belongs to the plaintiff.

"(6) That the plaintiff's property at the corner of Ninth and Christian streets, built prior to 1846, never had a chimney in it for the use or convenience of its owners, tenants, or occupiers.

"(7) That, in building the two three-story brick buildings now known as $44 and 846 Christian street, Stephen Smith used the twenty feet in front of the ground he acquired from Johnson, and also the five feet or unoccupied piece of ground that he acquired from Brown before acquiring Johnson's lot, and which adjoined the corner property on the east. In constructing the new threestory brick building, 844 and 846, he left an open space for an alley between those two houses, which he built to form the second floor of one, or a part of the second floor of both, of those houses, and had the alley to extend from Christian southwardly the depth of his new brick buildings, about twelve feet; and at the southern end of the alley he constructed a party fence between those two properties, with a gate on either side opening into each of the yards, and this fence extended southwardly to a brick privy or outhouse erected on the rear end of his three lots that fronted on Christian street. This brick privy or outhouse was constructed to form three apartments or separate inclosures, so that there should be one for each one of his three lots, viz., one with a separate door on the east side of the fence for the use of 844 Christian street, and two on the west side of the fence, with separate doors and apartments, as stated, for the use of 846 and 848 Christian street; the latter being the corner property owned by the plaintiff, as above stated. The door for the plaintiff's apartment or inclosure in this brick privy or outhouse was located about nine feet eastwardly of the kitchen door of plaintiff's property, leading into the yard that had been formed by the fence referred to, and about three feet southward from that kitchen door. In this fence, erected by Smith, he also put a hydrant with a turning spigot or nozzle, so that the same could be used by the occupants of the properties on either or both sides of the fence. The plaintiff's property had no other yard than that formed by the fence, which left an open space between it and the plaintiff's house, to be used in common with 846 and plaintiff's property, 848 Christian street; that yard having been

made of part of the five feet of ground that was originally conveyed with the corner property in the deed from Brown to Smith.

"(8) That the physical condition, appearances, and uses of said fence, hydrant, brick privy, or outhouse, as last above described, were the conditions, appearances, and uses of the three properties at the time Stephen Smith conveyed to Thomas Prentiss, in May, 1867; and they remained the same, without any interruption, from that time until the month of May or June, 1903, when the trustees under the will of Stephen Smith, who had died in 1874, undertook to alter and improve the properties known as 844 and 846 Christian street, and, in doing so, tore down and destroyed the brick privy or outhouse referred to; had the well thereunder filled up; and disturbed plaintiff's use of the chimneys that he and his predecessors in the title had been using; removed the hydrant and the fence referred to; erected a small frame water-closet in the place of the old brick privy or outhouse, putting the new frame water-closet and hopper, connected with underground drainage, for the sole use of the plaintiff, located at the distance of about four feet east of the plaintiff's building, and about four or five feet from the plain- | tiff's kitchen door; and propose and threaten to construct a fence across the open space extending from said kitchen door diagonally to said water-closet, so as to confine the plaintiff, his property, and his use of the same, to the limited space inclosed within said new fence to be erected, whereby the plaintiff will be deprived of the use of the yard that has been enjoyed in common with the owners. tenants, and occupiers of the property 846 Christian street for more than thirty-six years, and also will be deprived and prevented from enjoying the free ingress, egress, and regress in, to, and from the well granted to him and to the said Thomas Prentiss in 1867, and uninterruptedly enjoyed since that time.

And

"(9) The eastern wall of plaintiff's corner property was less than nine inches thick. It was built before 1846, and before the passage of the act of Assembly regulating the thickness of walls of buildings, passed May 7, 1855 (section 8; P. L. 467). when the building was erected it was constructed without any chimney, but, being then in a rural part of the country, and having an open space curtilage to and a part of the lot upon which the building was erected, of not less than five feet, according to the deeds, chimneys could then be dispensed with, and stoves used without them.

"(10) That the wall was less than nine inches thick.

"(11) When Stephen Smith, the owner of the three properties, 844, 846, 848 Christian street, erected the two small three-story brick buildings, 844, 846 Christian street, before 1867, he appropriated, used, and took from the corner property (848 Christian

street) its curtilage of five feet of ground, and open space to the east of it, and built No. 846 Christian street up against the eastern wall of the corner property, 848 Christian street, deprived of its yard or ground on the east (cut off its original natural resources, doubtless used as substitute for chimneys), made the alley, erected the fence, dug privy well (over which was erected a large brick house, with the three inclosures above mentioned), and placed the hydrant in the fence, as described among the 'undisputed facts.'

"(12) It must be concluded that Stephen Smith, who had owned the corner property, 848 Christian street, from April 4, 1846, knew that that property possessed no chimneys, and, being deprived of its natural outlet on the east, in constructing the wall of 846, he so constructed it that the chimneys of that building were placed on its western side, so that they could be utilized and used for both of his properties, 846 and 848 Christian street, connected with openings in each house united by terra cotta pipes.

"(13) The right to use the alley, the hydrant, and the chimneys, in addition to the privy provided for by express grant in the deed, was and is part of the appurtenances granted by the deed from Smith to Prentiss, and to the subsequent owners of the title down to the time of the disturbance by the defendants, is clearly established by the testimony.

"(14) Miss Anna A. McPeak, a school teacher (in no wise interested in the case), over forty-five years of age, whose father was an alderman, and who moved into the corner property in 1856, testified that she was born in that house, and lived there until 1877 or 1879, and states most positively that she lived there over twenty years, and 'that the alley, the hydrant, the privy, and chimneys were a part of our property [meaning the corner property of 848 Christian street], and used as such.' Without referring to her testimony concerning the brick privy or outhouse, about the existence of which there is no dispute by the defendants, in speaking of the hydrant the witness, after indicating on the plan where the hydrant stood, said it was right on a line with the houses on Christian street. The alley proceeded from the back door of the two houses on Christian street, as marked in the red lines on the plan. 'I always used that alley when I lived there; was never interfered with, and never interfered with in the use of the chimneys.' So clear, positive, and uninterrupted was the use of the chimney erected on the adjoining property by the corner property, that this witness did not know that the chimneys were not built in her (corner) house. On cross-examination, she said: 'We used the yard in common. There was only one yard for two houses. and one hydrant for three houses. I am quite sure that I lived in the property at the