Omensetter v. Kemper , 6 Pa. Super. 309 ( 1898 )

Opinion by

Wickham, J.,

The plaintiff sued in trespass, for the alleged unlawful acts of the defendant in closing up two windows in the east wall of her house, which is situate on East Leverington Avenue, in the city of Philadelphia. The defendant tried to justify his acts by averring, and attempting to prove, that the wall extended over on the property of his wife, by whose authority he obstructed the windows. The only question, therefore, outside of the matter of damages, was whether or not the wall was built on the land of the defendant’s wife. To make this question of fact still more definite and easy of solution, the defendant in his first point, which was affirmed, asked the court to charge that his wife was entitled to a lot fifty feet wide west of the western boundary line of another lot, adjoining and east of hers, known as the Shinkle or Morton lot. This boundary line was marked by an ancient fence which both parties agreed was the true eastern boundary of the Kemper lot.

Under the instruction requested by the defendant and given by the court, it is apparent that if, measuring westwardly from the Morton fence to the Omensetter wall, Mrs. Kemper had a lot fifty feet in width, all she claimed under her deed, then the defendant was guilty of the trespass charged, unless through a consentable line, or under the statute of limitations, the wife could justly claim more land. Such was the necessary effect of the way in which the defendant had the case submitted to the jury. Tlie jury, looking at all the evidence bearing on this.point, found in effect, that Mrs. Kemper had the fifty feet referred to east of plaintiff’s house and west of the Morton fence, and therefore rendered a verdict against the defendant. The evidence shows, that the defendant intruded west of the eastern surface of the wall, the obstructions having been nailed to the wooden frames set back, in the window openings.

The court had in its charge ruled, that there was not sufficient evidence to establish a consentable line, or to give title under the statute of limitations, to the land occupied by the wall or any part thereof. The defendant therefore had to stand on his wife’s deed and the measurements made westwardly from the Morton fence, and the jury found that she had fifty feet east of the plaintiff’s building.

Let us now look at the assignments of error. The first, second, and third relate to the admission of testimony showing that the plaintiff’s husband, before she erected her house in 1889, consulted with the defendant, who encouraged the putting in of the windows. He talked and acted at that time in such a way as to lead one, not knowing that his wife held the title, to assume that he was the owner of the lot adjoining the plaintiff’s. He alone was sued, and, at the time when the testimony objected to was offered, his defense was not developed. The testimony was therefore properly admitted as part of the history of the matter in controversy and as bearing on the question of license, as well as the alleged bad faith and recklessness, or oppression of the defendant. Even after the defense had been opened, and it appeared by the wife’s deeds that she was the real owner of the property occupied by herself and husband, and that he therefore had no authority to bind her, the evidence was still pertinent, in case the jury found that the plaintiff’s house was built in on her own lot. It tended to furnish some guidance as to the measure of damages. Omensetter, in the conversation detailed in the first assignment of error, asked Kemper, after showing him the plan of the house if he had any objection to it. Kemper replied, “No, John, I would rather have those windows there than a dead wall.” Omensetter says farther, in giving his version of the conversation, “ I told him I intended to keep within my own line which I am doing.” The remark “ which I am doing ” was volunteered by the witness, was not called out by any question, and in strictness was inadmissible. A motion was made by the defendant’s counsel to strike it out, but as there is no assigmnent of error, based on the court’s refusal to do so, the matter need not be further considered.

To another witness Kemper said, “ I gave him” (Omensetter) “ permission to put two windows in the gable end of this wall,” and made a like statement to still another person.

The learned trial judge told the jury, in language not to be misunderstood, that Kemper had no authority to represent his wife, and that no license had been proved. The jury found in effect that the plaintiff’s building was inside her line. In view of this finding we fail to see why, in assessing the damages, they had not a right to consider the defendant’s conduct from beginning to end so far as it related to the windows. He encouraged the putting of them in. He was told by Omensetter that the house would be built west of the Kemper line, and as a matter of fact, it was so built and maintained. And yet, notwithstanding these things, the defendant, without a word of notice or warning, disfigured the plaintiff’s habitation and closed up her handsome and costly leaded and plate glass windows by nailing over one an old pine batten door, and over the other “ bagging covered with manure, horse manure,” thus causing crowds of six to a dozen people to frequently gather, as the evidence shows, to view the odd decorations.

We think that all the testimony of the three witnesses mentioned in the assignments we have been considering, so far as it was responsive to the questions or suggestions of the plaintiff’s counsel, was admissible. Anything objectionable and volunteered should have been met, at the time, by a motion to strike out, and if such motion were overruled, the refusal, if excepted to, could have been assigned for error here. This has not been done, and at any rate, the irresponsive matter is so harmless as to be scarcely worth the trouble.

The fourth assignment complains that the court overruled the following question, put for the defense to one of the surveyors on cross-examination: “Assuming that the fence line as you have put it on the plan was the fence as it has been in existence, as testified to by Mr. Kemper, and running that fence out upon the straight line as Mr. Kemper testified that the fence did run to Leverington avenue, state to the court and jury whether or not that would show that the plaintiff’s property was built over Mrs. Kemper’s property.” This question was very properly disallowed for two reasons: first, it does not appear that the witness heard what Kemper had testified, about the fence and the length of time it had existed; and second, to have allowed the witness to answer would have made him the arbiter of the whole question of title including the applicability of the statute of limitations. It was the province of the jury to determine whether the Omensetter wall was built on the Kemper property. The witness should have been asked as to the position of the fence with reference to the wall, or the Morton line, or as to like matters within his art.

■ The fifth and sixth assignments are based on the instructions given the jury to the effect that the plaintiff, being in possession of her house, including of course the wall and windows, and the defendant having admittedly invaded her possession, it devolved on him to explain or justify his acts. As this is horn-book law, part of the very alphabet of the law of trespass, no authorities need be cited to sustain it. Mere possession, fortunately for the good order of society, is in itself a form of title, and he who interferes therewith must be prepared to show a better one.

• The seventh assignment is not quite fair to the court below. The instruction complained of is an excerpt, wrested from its context. Had all that was said, on the subject referred to in this instruction, been quoted, it would appear that the matter of the correctness of the conflicting measurements was left entirely to the jury. Even the expression of opinion, contained in the excerpt, was practically withdrawn near the close of the next paragraph of the charge.

In the eighth assignment the appellant complains, that the court said to the jury that the defendant’s measurements “ were made by a baker attended by a tinsmith under the supervision of a lawyer.” That the measurements were made by three persons of the respective callings mentioned, instead of by a surveyor, and that the lawyer superintended, is indubitable, but a careful examination of the testimony does not make it quite clear Avhether the baker, who was the defendant himself, was attended by the tinsmith, or the tinsmith by the baker. However, a slight mistake in stating the order of rank would be harmless error, as it is quite certain that the baker was at one end of the tape line and the tinsmith at the other. The plaintiff’s evidence as to the disputed line came from professional surveyors. The defendant first called in a surveyor, but being dissatisfied with the result, he rejected the artist’s work. Then, instead of employing another surveyor, he undertook, with the aid of his counsel and a neighbor, to make his - own measurements, this being tbe first experience either of the three had in measuring land or finding boundaries. It was, therefore, not out of place for the court to call the attention of the jury to their vocations, and although it may have been done in a manner calculated to provoke a smile, there was not such a wide departure from judicial gravity as to demand a reversal. It may be mentioned here, that the testimony of Mr. Thorp, one of the surveyors, explains how easily these three gentlemen, ignorant of the courses of the lot lines and the angles at which they intersect the avenue, might make mistakes, although actuated by the most honest motives.

It would have been better for the court to have simply refused the plaintiff’s second point, set forth in the ninth assignment of error. The answer, however, taken as a whole, is equivalent to saying, “ It is true that if a license has been proved, then it is irrevocable, but there is no evidence that either Kemper or his wife gave any license.” In the general charge, the jury were emphatically instructed that no license had been shown, the learned trial judge closing his remarks on this head with the words “ Therefore as I say, the question of license is out of the case, and you need not consider it.” In view of all this, the appellant, in our opinion, suffered no harm from the manner in which the court disposed of the plaintiff’s second point. The jury must have understood that, in effect, the point was refused.

The tenth assignment rests on the refusal of the court to charge as follows: “ It is tire uncontradicted testimony of the defendant that the division line between the property of plain-! tiff and Catharine Kemper for upwards of twenty-one years next preceding the erection of plaintiff’s house was marked by a straight fence, as shown on the plan of survey which you have in evidence. I instruct you, if you find the said fence to have existed as testified to, and that the plaintiff’s house is upon or over the line as so established, then your verdict must be for the defendant.” To have affirmed this point would have been serious error. It is true the defense offered evidence as to the existence of a straight fence, running back from Leverington avenue, along or near the disputed line, and a part whereof was taken down by the plaintiff when she built her house. It was testified by the defendant and his wife, that the fence had been there some thirty-five years before the trial. Mrs. Kemper bought in 1877, the Omensetter house was built in 1889. Kemper testified that the plaintiff’s husband, between the two years just mentioned, helped to maintain the fence. Under the proof, we have only a period of twelve years, at the most, during which the defendant’s wife can be said to have claimed up to the fence. We are left utterly in the dark as to the history of the fence prior to 1877. It does not appear who built or maintained it; whether it was intended to mark the true line or a consentable line; whether it was recognized by former owners as indicating the boundary, or whether Mrs. Kemper’s predecessors in title had claimed and held up to it. The merely calling it a division or line fence by the defendant and his wife, in their testimony, does not make it one. It was their duty to supply the jury with facts. The measure of proof is indicated in Brown v. McKinney, 9 W. 565, and Reiter v. McJunkin, 173 Pa. 82, the strongest cases that can be found in our reports in favor of the appellant’s position.

We may add, that where this fence stood with reference to the wall is, to say the least, left very conjectural. The only witness who testified directly in regard to the matter was the carpenter, who built the plaintiff’s kitchen back of the main building, and who was called for the defense. He stated that he took down about twelve feet of the fence, but added that he built, inside the line, on the plaintiff’s own lot.

As to the eleventh and last assignment, we cannot say, looking at all the facts, that the amount of the verdict should lead us to interfere.

Judgment affirmed.