Thompson v. Kauffelt , 110 Pa. 209 ( 1885 )

Mr. Justice Clark

delivered the opinion of the court,October 5th, 1885.

The parties to this ejectment trace their title to a common source. The small piece of land in dispute is admittedly part of a large tract, formerly owned in fee by the Wrights-ville, York and Gettysburg Railroad Company. The deed to Henry Hantz was dated 27th March, 1862; that to Henry Kauffelt, 28th April, 1862. The plaintiff claims title to the land in dispute under the deed last mentioned ; the defendants under the deed to Hantz, and also by the Statute of Limitations. Dismissing, for the present, the claim under the Statute, wé will consider the case presented by the conveyances mentioned.

The deed to Hantz was first, in the order of time, and the grantee therein is, of course, first entitled, according to the full measure of the grant therein contained. The place of beginning is unmistakable, and the town plot of Wrightsville, the correctness of which is not disputed, gives all the data necessary to ascertain the exact and true location. As the calls of the Kauffelt deed are for the lines of the Hantz lot, and the latter is first entitled, the lines of the former will not only yield to, but will extend up to the lines of the latter. The true line of division therefore, between these lots, unless some mark or monument, found upon the ground, should give a different designation, is a line beginning at a point on the line of Garden alley, fifty feet distant from Howard street, thence running northwardly, parallel to Howard street, fifty-one feet, and thence by a straight line, eastward!}', to the northeastern corner of the brick house, formerly occupied by William Moore, at its point of contact with Front street. Frank J. Magee, a surveyor, states that he has surveyed the entire section between Second and Front, and between Chestnut and Hellam streets, according to the borough map ; that he has located the lots on Howard street and the line of Garden alley, according to the same map; that by a survey which he made from the description in the deeds to Hantz and Kauffelt and the location of the streets by the borough map, the triangle now in dispute, is embraced in the boundaries of the Kauffelt lot and not in that of Hantz. He further states, in substance, that about one foot from the point on Garden alley where this division line begins, he found an old fence which ran almost parallel with Howard street, to a point about forty-eight feet from Garden alley, and that from that point it ran in a direct course for the northeastern corner of the brick house referred to, but terminated opposite to, and four feet eight inches distant from, the northwest corner of the house, with which it is by a cross fence connected; and that this fence, if it had been extended to the northeastern corner of the ho use,would also embrace the ground in dispute. These fences, it is admitted, were made long before the deeds of 1862, and have ever since been permitted to stand on the same ground. The fences were not made therefore to mark the lines, and it is equally clear, from the fact that the fence at this point does not conform to the call, that the line was not made to run with the fence. The court was undoubtedly correct therefore in saying to the jury: “If you believe the testimony of Mr. Magee, and there is no reason whatever to doubt it, there is nothing in the title produced by the defendants, or anything in the surveys or maps produced by the defendants, which tends in any way to interfere with the claim of the plaintiff as regards this little piece of land, or to lead us to doubt in any way the correctness of that claim.”

Magee is the only witness who testifies on this subject; there is no contradiction of his testimony, no conflict in the evidence ; he was a witness called by both parties, and testified substantially to the same facts in behalf of both; there was therefore no question of fact to submit to the jury, and the court was clearly right on this branch of the case in directing a verdict for the plaintiff.

But the defendants contend that there was evidence which should have been submitted to the jury upon their claim of title under the Statute of Limitations. To sustain this defence, the burden of proof is upon the defendants; they must show an actual, continued, visible, distinct and hostile possession for twenty-one years. There is evidence that in the year 1856 or 1857 the title of the railroad company in both lots was sold by the sheriff of York county, and that at this sale Hantz and Kauffelt purchased the property which was afterwards conveyed to them, respectively, by the company; that the sheriff sales were for some reason never consummated, but the purchasers at the time entered into the possession of their respective lots, and the company afterwards completed the titles which had their inception in the sheriff’s sale, by the execution of the deeds referred to. At the time of or soon after the purchase at the sheriff’s sale, a small house was built on the Hantz lot; it was built against the north wall of the brick house, and covered the acute angle of the triangle in dispute to the depth of about twenty-five feet. We have no evidence as to who held the possession of this house prior to 1857, but Kauffelt testifies that from the time of the purchase in that year, Hantz was in the continuous possession. It would appear that the possession of Hantz, spoken of by Kauffelt, was in part by his tenant Rudy, who says lie occupied part of the .property as a tailor shop from 1857 to 1869. In his examination in chief he testifies that the yard in the rear of the shop ran up to the line of the brick wall, as it is now, and was possessed and occupied by him along with the building to the wall of the brick house; on his cross-examination, however, he says it was not occupied by anybody or used for any purpose. Mrs. Anna Moore occupied the Kauffelt house for ten or eleven years, from 1859 to 1869 or 1870. She says: “The fence just came to the corner of the house and extended out a piece and ran iip to the upper end of the lot. This yard was open at that time, and was occupied by Mr. Hantz’ tenants. It was occupied by them up to the house, to the wall of our house. I don’t remember that any wood was piled up there. It wras open and they occupied it.”

In 1869 some changes were effected on the property; the height was increased from one to two stories, the new part being built up to the wall of the brick building, and a portion cut off for a barber shop; the building then consisted of three parts, a dwelling, a tailor shop and a barber shop. Mary Critchfield testifies that she occupied the dwelling with the yard in the rear up to the brick wall of the Kauffelt house from 1861 to 1871. In the year 1872 the defendants, William A. and Alexander R. Thompson, leased the property, or a part of it, for a tobacco store, and used the yard in the rear as a place to deposit the stems. During the period of their tenancy they purchased the property and have since remained in the possession. M. R. Sourbeer occupied the dwelling from November, 1876, until the spring of 1878, as the tenant of Warfel at first, but afterwards of the Thompsons, to whom he attorned.

On the question of the continuity of the possession the testimony is certainly very meager and unsatisfactory; although the fact is not anywhere denied it does not very clearly appear that the various parties in possession from time to time were tenants of the successive owners; there are some general expressions found in the testimony to that effect, but the question is certainly left in some degree of doubt. The fact would appear to have been assumed at the trial; the learned court in the charge says: “The most that the defendants have offered to prove in the way of occupation is from 1859, by tenants upon the property occupied by them,” etc. It is of course unnecessary to establish any connection between the tenants; the possession of the tenant is the landlord’s possession; if successive privity exists between those occupying the relation of landlord to the several occupants, it is sufficient; and 'when actual possession is proven by parol evidence, whether it is adverse and continuous is in general a question for the jury: McMasters v. Bell, 2 P. & W., 180.

In order to break the continuity of possession, the vacancy must not be merely accidental, or such as is incident to a change of tenants, or for want of a tenant; but if there be an abandonment for any time, or if one disconnected with the previous holder take the possession, the continuity is broken.

It is clear that Hantz entered into the possession of the property after his purchase; Kauffelt testifies that he did and. that his possession was continuous. There is some evidence, we think, whether sufficient to satisfy a jury, we cannot say, that the buildings covering a part of the ground in dispute, were, from 1857 to the bringing of this suit, in the actual possession of persons who were the tenants of the several successive owners of the Hantz title; there is no evidence, at all events, of any abandonment, or of the entry of any one shown to be disconnected with the Hantz title. There is also some evidence that the several lessees occupied the yard in the rear to the wall of the brick house, sometimes for cultivation and sometimes for storage of wood, tobacco stems, etc. It must •be admitted that the case exhibited by the evidence on part of the defendants is not strong, but we think it should have been submitted to the jury ; the facts are but feebly developed ; but as the cause goes back for a new trial, it will doubtless be more fully presented.

The judgment is reversed, and a venire facias de, novo awarded.