Faulty Analysis in Easement and License Cases

Abstract

A recent Pennsylvania case, Penman v. Jones,' involving im- portant coal mining interests, suggests not only some brief observations on what appears to be a novel decision as to easements, but also some critical comments on that which is of far greater significance: the reasoning by which the result was reached. 2 The unusual chaos of conceptions and inadequacy of reasoning in easement and license cases have not infrequently been emphasized-without, however, any suggestion either as to the cause of the difficulties involved or as to the remedy to be applied.Thus, a learned New Jersey judge, Vice-Chancellor Van Fleet, has put the matter in terms none too strong :3 "The adjudications upon this subject [easements and licenses] are numerous and discordant.Taken in their aggregate, they cannot be reconciled, and if an attempt should be made to arrange them into harmonious groups, I think some of them would be found to be so eccentric in their application of legal principles, as well as in their logical deductions, as to be impossible of classification."The difficulties so justly lamented by the New Jersey court find striking exemplification when one ponders and compares the majority opinion and the dissenting opinion in Penman v. Jones. 5 It is believed, moreover, that a close examination of this case and others may suggest both cause and remedy.In 1873, A (Lackawanna Iron & Coal Co.), the owner of a certain large tract of land, sold and conveyed a part of it to B, excepting and reserving to the grantor, its "successors and 1 (19x7, Pa.) ioo Aft.io43.'Similarly interesting for its reasoning and for its application of fundamental legal conceptions is the comparatively recent case of Graff Furnace Co. v. Scranton Coal Co. (914) 244 Pa. 592, 598."East Jersey Iron Co. v. Wright (188o) 32 N. J. Eq.248, 254.The italics in the passage quoted from this case and also in the passages to be hereafter quoted from other cases are those of the present writer."Compare Chancellor Kent's remarks on the same subject, 3 Kent, Cons.*453. (x917