Harvey v. Vandegrift

89 Pa. 346, 1879 Pa. LEXIS 155

Opinion

Mr. Justice Paxson

delivered the opinion of the court, May 7th 1879.

The plaintiff below is the owner of a tract of three and a quarter acres of land on the river Delaware, in Bucks county, a few miles below Bristol. He is also the owner of certain rights of fishery appurtenant to said land. The defendant owns the tract adjoining on the east, and in the year 1870 built a wharf in front of his land, extending out into the river over one hundred feet below low-water mark. The plaintiff contends that this wharf obstructs his right of fishing, and brought this action in the court below to recover damages therefor.

No servitude upon the land of the defendant appears in his line of title. No reference to it is found in his own deed or in the mesne conveyances from Amos Wilson. By ascending the stream of title, however, until he reached John Paxson and Levi D. Vandegrift, under whom both parties derive title, he would have ascertained that when they conveyed to Charles Tyson the fourteen-acre tract known as “Dunk’s Ferry,” they included the fishery in controversy, by the following description: “ Together with all our right and privilege of the fishery as it has heretofore been conducted, and landing the ferry-boats on the bank of the said river to the distance of twenty-eight perches down the same below the place of beginning.” This fourteen-acre tract had a river front of about five hundred and fifty feet, but only extended fifteen feet below high-water mark. Tyson conveyed three and a quarter acres of said tract to John Vandegrift, including the entire front between low-water mark and fifteen feet below high-water mark. The deed from Tyson to Vandegrift contained the following in reference to the fishery : “ Together with all the right of the said Charles Tyson in the fishery and the privileges thereto belonging, as it has heretofore been conducted, also the privilege of landing the ferryboats on the bank of the said river to the distance of twenty-eight perches down the same, below the place of beginning,” &c.

In the prior conveyance by the heirs of McElroy to Pax’son and Vandegrift of the large tract of which the premises of both the plaintiff and the defendant form a part, the fishery is described as follows: “ Together with the right and privilege of fishing and landing the ferry-boats on the bank of the said river to the distance of twenty-eight perches below the place'of beginning.” The twenty-eight perches below was land formerly belonging to Corvasier, and was so referred to in the grant of the fishery contained in the deed of these premises from John Kidd to John McElroy.

Assuming that the defendant was affected with notice of the.grant of the fishery as set forth above, we are led to consider the extent of said grant. Just here the difficulty in the case arises. There is nothing in the language employed that in terms imposes any servitude upon the land of the defendant. The court below admitted parol evidence to show the extent of the fishery. Against the objection of the defendant witnesses were permitted to testify that the shore in front of defendant’s land, and for a considerable distance beyond the pier, had been used by the plaintiff and his predecessors in the fishery, for hauling the seines and other purposes connected with said fishery. The admission of this evidence was not assigned for error, and whatever our view of its competency may be, the court below cannot be convicted of error in admitting it. But by the defendant’s first point the learned judge was called upon to construe the language of the deed containing the grant of the fishery,.and-to define the extent thereof as a question of law. This he declined to do, and instructed the jury that “ the grant in the deed is of ‘ our right and privilege of the fishery as it has heretofore been conducted,’ and it is granted as an appurtenance to the land conveyed. Parol evidence has properly been received to show', how the fishery had previously been conducted, and it is for your consideration in determining the extent of the previous use of the defendant’s land for the purposes of the fishery.” The effect of this point was to withdraw from the consideration of the jury the parol evidence which had been previously admitted in regard to the extent of the fishery. It was the equivalent of a motion to strike it out. The correctness of the answer of the court must be measured, therefore, by the competency of the evidence referred to.

It is undoubtedly true that where the subject-matter of a grant is insufficiently described in a deed, parol evidence may be given to show precisely what was intended to be conveyed. It is said in Stark, on Evidence 692, that “in general, when there is any doubt as to the extent of the subject-matter devised by will, or der mised or sold, it is a matter of extrinsic evidence to show w’hat is included under the description as parcel of it.” The same principle is ruled in Scott v. Sheakly, 3 Watts 50, and Hoffman v. Danner, 2 Harris 25. And in such case it is well decided that the question of the extent of the grant must go to the jury. But was there any such ambiguity in the case in hand as to bring it within the rule above stated ? The authorities are equally clear that the rule which allows extrinsic evidence to explain the extent of the subject sold, has no application when a subject-matter exists which satisfies the terms of the instrument of conveyance: Stark, on Ev. 693; Chichester v. Oxenden, 3 Taunt. 147. The right of fishing granted by the deed to Paxson and Vandegrift, was the right of fishing twenty-eight perches down the river below the place of beginning. That is to say, in addition to the right of fishing opposite and upon their own land, they were granted the privilege of fishing twenty-eight perches further down the river upon the land formerly of Corvasier, which was thus made servient to the fishery. There is no ambiguity here. The extent of the grant is .clearly defined, and no extrinsic evidence is needed, or would be admissible to extend it. The grant of the fishery contained in the mesne conveyances from Paxson and Vandegrift to the plaintiff, vary the phraseology somewhat, but the substance remains the same. It carried the right to the fishery as it has heretofore been conducted, and to use the shore for twenty-eight perches below the place of beginning for the purposes of fishing and landing the ferry-boat. The words I have italicised were not in the original grant, and much stress has been laid upon them as bearing upon the extent of the fishery, and'as opening the door to the admission of the extrinsic evidence referred to. We are to construe these words according to their ordinary and known signification. They are not terms of art. In what light would the defendant, standing upon a fee-simple title, with no word therein to indicate that his grantor had fastened a servitude upon the land he had thus acquired, yet affected with notice of the grant of the fishery, regard, or be bound to regard the language referred to.? The words “ as heretofore conducted,” have no necessary relation to the extent of the fishery. Among the many definitions of the verb “conduct,” given by Worcester, the only one that has any possible application to this case is “ to carry on; to manage; to regulate.” Hence, if the defendant had found this grant in his investigation of his title, he would have ascertained, 1st. That the plaintiff had the right of fishing on his own front of about six hundred and seventy feet at low-water mark, and for the distance of twenty-eight perches below on land of Corvasier; and 2d. That the fishery was to conducted, i. e., carried on, managed, or regulated as heretofore. What was there in the language of the grant, or in what was omitted therefrom, to warn the defendant that it fastened a servitude upon his property which would practically destroy it as a river front? If there had been no attempt to describe the fishery, there would have been more plausibility in the plaintiff’s claim. But it is described, and there is a subject-matter which fully satisfies-the terms of the grant. Having fixed a precise boundary for the lower end, there was nothing to put the defendant upon notiee that the upper end of the fishery extended indefinitely up the river. On the contrary, he had the right to assume that it stopped where the plaintiff’s land ends. It is* manifest that the extent of the fishery was before the parties when the grant was made. They extended it twenty-eight perches below the plaintiff’s land; if they had intended to carry it up the river beyond the land of the plaintiff, it is probable such intention would have been expressed by appropriate language.

We are of opinion that there was no such ambiguity in the grant of the fishery as required extrinsic evidence of its extent; that in view of the defendant’s first point, it was the duty of the court to declare the proper construction of the grant as a matter of law; and that the grant of said fishery to the plaintiff was not notice, either actual or constructive, to the defendant, that the fishery extended up to and beyond his pier. This sustains the first, second, ninth, tenth and twelfth assignments of error. Those that remain need not be discussed.

Judgment reversed.