George v. Kern , 60 Pa. Super. 26 ( 1915 )

Opinion by

Kephart, J.,

This appeal involves the determination of twenty-nine assignments of error. The plaintiff’s statement, material to the questions involved, is as follows: “Whereas, there was an old division fence between the property of the plaintiff and the property of the defendant which had stood there and had been maintained and recognized by the plaintiff, and his predecessors in title, and the defendant, and his predecessors in title, as the dividing line between their properties, and which said fence was grown up with brush, and the brush having been cleared away by the plaintiff, it was agreed by the plaintiff and the defendant that a new fence should be put up by them on the line where the old fence stood. . . . The said defendant in great haste dug post holes on the plaintiff’s land and put up a fence the entire distance between their lands, not on the line where the old fence stood but over on the lands of the plaintiff of the width of about one rod at the public road. . . . And the plaintiff then put up his portion of the fence on the old line with the posts and material which he had there, as before stated, and the fence so erected on the original line and where the old fence stood was allowed to remain for a short time. . . .”

It is clear that the issue thus framed was the location of this old line which had been recognized between the property owners, and the location of the old fence with reference to that line. Plaintiff’s contention was that they were identical. For the purpose of showing that the fence had been recognized by the defendant and his predecessors in title, and the plaintiff and his predecessors in title, as the dividing line, their deeds were offered in evidence showing this line by its course and distance, which, when run by survey, corresponded to the fence line on the ground. The deeds and surveys made therefrom, with the maps and plots, were competent evidence when followed by testimony showing ■the fence to be on the dividing line. They would show recognition and acceptance by the prior owners. In addition to this testimony there is the evidence of witnesses who had known this fence for forty years and upwards, and who fixed its location and position during that time between the two properties. In the .effort -to establish the disputed line between .the plaintiff^ and defendant’s land, as being identified with the fence line and the fence line with it, the fence and the line’s existence as such in its entirety from the time it was first known or exhibited by records may be shown. That in later years the line was cut up in sections forming boundaries between different owners does not matter, if the disputed section conforms in all general requirements to the original line as mentioned in the several deeds forming the chain of title. If slight variations exist their effect, unexplained, on the plaintiff’s contention, would be for the jury. The plaintiff was not limited in the scope of his inquiry to the fence as it existed on his eastern boundary immediately adjoining plaintiff’s property. It was therefore not error for the court to consider the line fence as it existed below the road as affecting and as an aid in determining the line fence between the plaintiff’s and defendant’s property above the road, on the plaintiff’s theory, supported by evidence, that there was no change in this fence prior to the trespass complained of.

The court was right in declining to permit appellant to cross-examine witness A. A. Zeigenfus as to the notice given through Mr. Freyman. His interest, while to some extent identical with this plaintiff, was not of sufficient importance in the trial of this case to make this notice competent evidence to affect the plaintiff.

Much of the evidence to establish the fact that the fence was recognized by prior owners as the dividing line comes from the existence of the southwest corner of the defendant’s property and the plaintiff’s starting point of the disputed line. It was called throughout the trial as the thirty-five perch corner. The deeds to this defendant and his immediate predecessor in title called for this corner. In an old deed dated 1837, in the defendant’s line of title, it called for a southwestern comer at the end of a thirty-eight perch fine. The defendant could not extend his lines beyond those called for in his own deed to plaintiff’s detriment, unless the lines so extended did not reach the call mentioned in the deed, or by adverse possession of the land owned by the plaintiff. The evidence of possession was not of that character from which it might be said that the defendant had acquired any right thereunder.

In construing the defendant’s deed the court held substantially as we. have stated, and appellant lays too much stress on the court’s remark that “thirty-five perches must be taken as the correct corner,” as being a definite finding of fact. It must be read in connection with other parts of the charge. As stated by the learned president judge: “Now, the first thing to determine is whether the thirty-five or the thirty-eight perch corner is the correct one for starting the northward line.” The existence of the thirty-eight perch corner, whatever 'evidence there was to sustain it, would, of course, be for the jury’s consideration. The existence of this thirty-five perch corner on the ground is evidenced not only from the calls in the deed and the surveys therefrom but from the testimony of witnesses who knew that it had been there, as an established comer for a long period of time.

There was no error in affirming plaintiff’s eighth point as it was a clear presentation of the evidence involved.

Tombler, defendant’s surveyor, made several surveys. He first ran the thirty-eight perch line to what is claimed by the defendant as the thirty-eight perch corner. This was done at a time when the defendant, was settling with one of the owners below the road for a portion of the disputed land. When this settlement was made, in order to arrive at a location on which to build a new fence, Tombler placed his instrument on a line between a point given him by the defendant on the north and this thirty-eight perch corner on the south. From this sight line, without bearings, he directed stakes to be driven for the proposed fence below the road. This fence can be seen from the photograph. This division line was not made from any call iñ a deed, nor was it made with reference to the location of an old fence north of the road, nor was it made upon a course and distance given by any authenticated record between two established comers. The projected line of the plaintiff’s eastern boundary from the thirty-five perch corner was made by this same surveyor in the same manner. (Ninth assignment.) The court did not commit error in stating to the' jury (eighth assignment) that the thirty-eight perch comer established by Tombler, could not be of much assistance to them. Had the northward line therefrom been made with reference to a fence line on the ground (which all admit was east of this line below the road), or made from any course or distance in a deed from which appellant had a right to claim the existence of this comer, it would have had more weight. The stakes placed on this line from the thirty-eight perch comer at the direction of Tombler, on which the new fence below the road was to be built, would not be conclusive on this plaintiff. (Tenth assignment.) The evidence shows that prior owners made no effort to claim to the thirty-eight perch comer. The court stated precisely what the defendant testified to (eleventh assignment) and the remarks with respect to ' Costenbader’s testimony (twelfth assignment) is fairly deducible from all of his evidence. The fact that the testimony of Lafayette Kern was not read to the jury did not prejudice defendant’s case.

The court’s quotation from the testimony of Mr. Tombler with reference to the Hower line (fourteenth assignment) was warranted by the testimony, and the instruction with respect to the slight variations which come from an old fence built on a zigzag line, which might cause the little variations between the fence north and south side of the road, was not an imposition on the defendant’s rights. There being testimony in the case that a monument had been placed on the public road from which a line had been run to plaintiff’s property, the eighth point, sixteenth assignment, asking that the jury be instructed that the median line would be the proper line on which to measure, was properly denied.

The seventeenth and eighteenth assignments of error complaining of the manner of treating Mr. Hower’s testimony, giving it undue prominence, is' without merit. The same observation may be made of the court’s statement with respect to the testimony of Frank Esch (nineteenth assignment), relative to the concrete post. There was nothing in Mr. George’s acts at that time which would be conclusive or convincing that he accepted this concrete post location as being the line of his property.

Assignments of error twentieth to twenty-eighth, inclusive, treat of various expressions of the court with respect to the testimony of witnesses. We have carefully read the statements complained of and the evidence in connection therewith, and the assignments are without merit.

The court throughout its charge clearly presented the defendant’s theory of the case, and only endeavored to outline to the jury the issue involved and the material evidence bearing upon it.

The assignments of error are overruled and the judgment is affirmed.