Fidler v. Rehmeyer , 34 Pa. Super. 275 ( 1907 )

Opinion by

Henderson, J.,

The plaintiff alleged an obstruction of a private way and supported his case by evidence of the existence of a lane along the line between his land and the defendant’s, which had been used by their predecessors in title for about forty years. It was not shown that the right was created by grant, but evidence was introduced to establish a prescriptive use. The plaintiff was called as a witness in his own behalf and in his examination testified to the existence of the lane and that the defendant, against his protest, erected a fence along it and near the middle thereof, thus depriving the plaintiff of its use and compelling him to drive over other portions of his land in performing his farm work. The defendant undertook to show on the cross-examination of the plaintiff that before the latter bought his farm he asked the owner from whom he was about to buy to attempt to secure an agreement from the adjoining owner, the defendant, to have the lane closed, the owner and the defendant to agree to release or surrender any rights they might have in the lane, the plaintiff not desiring to have it remain open as a joint way, and that Mr. Flinchbaugh, the owner, consulted with the defendant with reference thereto as a result of which consideration it was agreed by Flinchbaugh, the plaintiff and the defendant that the lane should be closed and the fence placed on the dividing line and that subsequently, after the plaintiff bought from Flinchbaugh, in pursuance of the arrangement theretofore made, a fence was constructed along the line, the plaintiff assisting the defendant in its construction; that the fence was built by the defendant with the knowledge, consent and in the presence of the plaintiff and on an agreement that the plaintiff should bear his share of the expense. The court rejected so much of the offer as related to what took place between Flinchbaugh, the plaintiff and the defendant before the deed was delivered by Flinchbaugh to the plaintiff and admitted the other part of the offer. A second offer of evidence tendering substantially the same proof was rejected by the court because it was not cross-examination and was an offer to contradict the plaintiff’s deed.

The first and second specifications- assign this action as error. We think the defendant was entitled to the evidence as proposed in these assignments. The pith of the plaintiff’s evidence was the existence of the way and the defendant’s unlawful obstruction of it against the plaintiff’s protest and request and his claim for damages was based wholly upon the allegation that the defendant without any right or justification had deprived him of the use of a way which his predecessors in title had acquired by prescription. He claimed further that he was entitled to exemplary damages by reason of the manner in which the defendant had proceeded. It was pertinent, therefore, to ascertain whether the defendant’s action was not in accordance with the agreement made before the plaintiff acquired title and whether the closing of the lane was not with his consent, at his request and with his co-operation. The questions did, indeed, introduce the defendant’s case but they were in line with, and suggested by, the plaintiff’s evidence in chief and had a direct bearing on the bona fides of his case as presented in his testimony. If the plaintiff demanded an abandonment of the lane as a condition precedent to his purchase from Flinchbaugh by reason of which all the parties in interest agreed that the fence should be placed on the line between the lands and this was done after the plaintiff acquired title, a sufficient consideration existed for the alleged agreement: Hudson v. Watson, 5 Pa. Superior Ct. 456.

Upon like consideration the offer contained in the third specification was admissible as made. It had a bearing not only on the question of the amount of damages, but on the allegation of abandonment or surrender of the easement which if established would defeat the plaintiff’s right of action. The proposal was to show voluntary acts of the plaintiff of a character so decisive and conclusive as to prove his intention to abandon the easement. The necessary effect of the erection of a fence by the parties along the line, in execution of a preceding agreement with the plaintiff, would be to destroy the easement. The case assumed is not one of an unexecuted agreeement for the surrender of the way, but of an abandonment pursuant to an executed agreement. The fact of the agreement and the nature of the acts done or acquiesced in by the plaintiff because of the agreement are material subjects of inquiry and if they clearly indicate an intention on the part of the owner of the right to abandon it, it is sufficient: Liggins v. Inge, 7 Bing. 682; Moore v. Rawson, 8 Barn, and Cress. 332; The Queen v. Chorley, 12 A. & E. (N. S.) 515.; Pope v. Devereux, 71 Mass. 409 ; Dyer v. Sanford, 50 Mass. 395; Crain v. Fox, 16 Barb. 184; Canny v. Andrews, 123 Mass. 155.

The plaintiff having denied that he had any arrangement with the defendant by which the lane was to be closed or that it was closed with his concurrence or consent the offer of evidence contained in the fifth specification seems clearly competent. The declaration of the plaintiff there referred to was made before the fence in the lane was built and bears directly on his intention with reference thereto and is corroborative of the defendant’s claim that the fence was not made against the will of the plaintiff and in violation of his right, but because he had abandoned the easement.

The twelfth, fourteenth and fifteenth specifications are based upon evidence introduced by the defendant tending to show that the use of the lane had its beginning in the friendly and intimate association of a father-in-law and son-in-law- who owned the adjoining properties; that the use of it was for mutual accommodation, by permission, and so continued thereafter and was, therefore, not adverse. It is a well-established rule of law that mere possession will not give title though such possession may have continued for a long period. The possession necessary to accomplish this result must.be adverse to the title of the owner. Where one enters in subordination to another’s title the statute will not begin to run in his favor until he does some act which destroys the relation: Wheeler v. Winn, 53 Pa. 122; Cadwalader v. App, 81 Pa. 194; The Tinicum Fishing Co. v. Carter, 61 Pa. 21. This rule applies to a right of way claimed by prescription. Such a right must not only have been enjoyed continuously for twenty-one years, but such use must have been adverse to the rights of the owner of the land in order to give a title : Okeson v. Patterson, 29 Pa. 22; Bennett v. Biddle, 140 Pa. 396. A grant will be presumed where one uses a road over another's land without objection and without asking for the privilege, but this presumption may be rebutted and the use may be shown to have been in subservience to the title of the owner of the land: Bennett v. Biddle, supra. If the use of the way grew out of the intimate relation of father-in-law and son-in-law for mutual convenience and accommodation and was continued by them and their successors in title in the same way and in the same spirit of mutual convenience, such enjoyment would not be adverse and no title would be acquired thereby. How it originated and the character of it was a question for the jury. It is clear that if it were such as is claimed by the defendant the change in ownership by a sale of either property did not necessarily change the character of the relation, nor make that hostile which had previously been permissive. The attitude of the respective owners may have changed, but whether it was changed is a question of fact. The plaintiff acquired no greater right than existed in favor of his grantor, and if the way in question was not established adversely before the plaintiff received his deed it is not created by that instrument. The case of Godino v. Kane, 26 Pa. Superior Ct. 596, is cited by the appellee’s counsel in support of the action of the court. That case does not go further, however, than to hold that where one uses an easement whenever he sees fit without asking leave and without objection such use is adverse and such adverse use may be shown by the manner in which it is enjoyed. The case is authority, however, for the proposition that evidence is admissible showing that the use began and continued in a manner inconsistent with an adverse enjoyment. The testimony of several of the defendant’s witnesses might lead the jury to believe that the lane was an arrangement of neighborly accommodation; that its use was permissive and that there had not been an assertion of an adverse title thereto before'the plaintiff .bought his land. We are of the opinion that the defendant was entitled to an affirmance of the seventh, tenth and eleventh points. The other specifications do not require consideration.

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