Bicking v. Florey's Brick Works

Citations

• 53 Pa. Super. 358
• 1913 Pa. Super. LEXIS 181

Syllabus

<p>Equity — Jurisdiction—Continuing trespass — Title—Remedy at law.</p> <p>1. Where the complainants in a bill in equity claim title in a strip of land and seek to restrain the defendants from maintaining a continuing trespass thereon in the shape of a bridge or causeway, and the defendants claim that the complainants have only an easement in the land, and the whole dispute turns merely on the construction of a particular deed made by a common ancestor in title, and there is no conflicting possession nor disputed facts, equity has jurisdiction over the case.</p> <p>2. A court of equity will restrain a threatened interference with the exercise of a right, without a prior adjudication of law, where the right is clear and there is no serious dispute as to any material facts.</p> <p>Deed — Exception—Reservation.</p> <p>3. A reservation in a deed is the creation of a right or interest which had no prior existence as such in a thing or part of a thing granted. It is distinguished from an exception in that it is of a new right or interest. An exception is always of part of the thing granted. It is of the whole of the part excepted.</p> <p>4. An owner of 560 acres* of land upon which were erected certain mills fed by a mill race, conveyed 326 acres by metes and bounds to his son. The land conveyed was on both sides of and included the mill race, but not the land upon which the mills stood. The deed contained the following clause: “Saving and excepting out of the above grant of land and premises unto the grantor, his heirs and assigns the mill race or water course now dug through the said land and used to convey the water to the mills .... and also a free board or passage of one perch wide on either side of the same shall be kept open and remaining to the grantor, his heirs and assigns to pass and repass at all times to repair and amend the said mill race.” The deed further provided that the grantee his heirs and assigns should have the right “to cut or open a passage or pas