Borough v. Kennedy , 229 Pa. 251 ( 1910 )

Opinion by

Mr. Justice Brown,

The second section of the Act of May 8, 1901, P. L. 142, relative to verdicts and judgments in actions of ejectment and regulating procedure therein, provides that “in all actions of ejectment hereafter to be brought, the plaintiff shall file a declaration, which shall consist of a concise statement of his cause of action, with an abstract of the title under which he claims the land in dispute, and in addition to the plea of 'not guilty,’ now required by law, the defendant shall file an answer in the natúre of a special plea, in which he shall set forth his grounds of defense, with an abstract of the title by which he claims; and no action of ejectment shall be considered at issue until the plaintiff’s statement and the defendant’s plea and answer shall be filed, nor shall any evidence be received on the trial of said action of any matter not appearing in the pleadings, subject to the power of amendment.” This ejectment was instituted by the borough1 of Rochester to recover a small piece of land which it alleges is part of Island Lane, one of its highways. The averment in the statement upon which it went to trial is that it claims title to the land as a part of- Island Lane, one of its public highways, under and by virtue of several acts of assembly, as set forth in its abstract of title. Its whole claim of title, as set forth in its statement, rests on an alleged original dedication of Island lane for highway purposes. The answer of the defendants denies that the land described in the statement constitutes any part of the said highway, or of any other in the said borough, and they claim title to it by virtue of various acts of assembly set forth in their abstract. On the trial the plaintiff endeavored to sustain its title as set forth in its statement and abstract, and, having rested, the defendants proceeded to show a title in fee simple in themselves under the acts of assembly referred to in their abstract. The borough in rebuttal then offered to show title acquired by continuous, open and adverse possession for more than twenty-one years prior to the institution of the suit. This offer was disallowed for the reason that it would not rebut anything that had been shown by the defendants and could not be received as evidence because it related to a matter not appearing in the pleadings. This ruling' was- correct. A motion- was subsequently made by the plaintiff to amend its statement and abstract of title by adding thereto an averment that the lands in suit had been, for more than - twenty-one years prior to the institution of the same, and.prior to the time that defendants took possession of it, thrown open to the public and had been continuously, openly and adversely used and occupied for all ordinary public purposes. The amendment was refused, and the first question raised on this appeal is as to the right of the plaintiff to make it.

A plaintiff may amend his declaration at any time during the trial as he pleases, provided only that he does not introduce a new cause of action: Hartman v. Keystone Insurance Co., 21 Pa. 466; Root v. O’Neil, 24 Pa. 326; Knapp v. Hartung, 73 Pa. 290; Erie City Iron Works v. Barber, 118 Pa. 6. The amendment which the plaintiff below asked leave to make was refused because, in the opinion of the learned trial judge, it would have introduced a new and independent cause of action. A cause of action is the particular matter for which suit is brought: Erie City Iron Works v. Barber, supra. In ejectment the cause of action is the possession of land by one to the exclusion' of another entitled to the possession of it. In the case at bar the particular matter for which the plaintiff sued was the possession of land particularly described in the original statement, and by its amendment it did not seek to change the purpose of its suit. If the amendment had been allowed, the same question — the right of the plaintiff to the possession of the land described in the original statement — would have remained for the jury’s determination. The plaintiff’s cause of action, as laid in its priecipe and statement, was the defendants’ possession of its property particularly described and, under the amendment, there would have been the same complaint. The proof upon which the plaintiff would have had to rely to support its title and right of possession would have been different under the amendment; but that was all. It would still have stood upon the same cause of action— the defendants’ possession of its land. This distinction was evidently overlooked, and the refusal to allow the amendment improperly followed. As it should have been allowed on the usual terms, the first assignment is sustained.

The other questions raised by the remaining assignments were all correctly disposed of in the learned and exhaustive opinion discharging the rule for a new trial and overruling the motion for judgment for the defendants n. o. v.

Judgment reversed and a venire facias de novo awarded.