Evans v. Erie County , 66 Pa. 222 ( 1870 )

The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— This was an action of ejectment to recover possession of a tract or strip of land described by the plaintiffs in their writ as “ one hundred and thirty-one perches and six-tenths of a perch in length by sixty feet in width, situated between the west line of the one hundred acres selected by the commissioners of the county of Erie and the west line of the third section of the town of Erie, and in the said third section of the town of Erie.”

The plaintiffs gave in evidence an Act of Assembly, passed April 8th 1833, Pamph. L. 243, by which the legislature granted to the borough of Erie “ the tract of land now owned by the Commonwealth of Pennsylvania, on the bay of Presque Isle on Lake Erie, and known as the third section of in and out lots of the town of Erie,” with a proviso “that one hundred acres of the said land be reserved for the use of a poor-house for the county of Erie, to be selected by three persons appointed by the commissioners of Erie county for that purpose.” They followed this by the report of the viewers appointed by the commissioners, dated May 10th 1833, by which it appeared that they had selected one hundred acres in the south-west portion of the said third section of the town of Erie. They then gave in evidence an Act of Assembly, passed May 2d 1864, Pamph. L. 680, entitled “ An Act to grant to the county of Erie the interest of the Commonwealth in a strip of land on the west side of the tract formerly granted to said county, for the use of the poor of said county.” After reciting the provisions of the Act of April 8th 1833, it goes on to state in the preamble “that the persons appointed selected the one hundred acres out of the south-west portion of the said third section; but in locating the same left a strip of land one hundred and thirty-one perches and six-tenths o'f a perch in length by sixty feet in width, between the west line of the land selected and the west line of the said third section.” It proceeds to grant to the county of Erie “ all the title and interest of the Commonwealth to the said strip of land as before described,” to form a part of the poor-house tract of said county: Provided, that nothing contained in this act shall be held to interfere with vested rights.” The plaintiffs then proceeded to give evidence by the testimony of surveyors and others, that the west line of the third section protracted in a straight line northward, would take in the quantity of land described in the writ in the possession of the defendant.

Upon the face of this title thus presented, it is almost too plain for argument that the plaintiffs had made out no case. The Act of 1833 had granted to the borough of Erie the entire third section, except the one hundred acres selected by the viewers appointed by the commissioners of the county, and if, as the preamble to the Act of 1864 recites, the viewers left the strip of land in controversy between the west line of the land selected and the west line of the said third section, the Commonwealth had no title or interest which the législature could grant to the plaintiffs without the consent of the borough of Erie. It would have been so even without the saving clause in the Act of 1864, that nothing therein should be held to interfere with vested rights. There was a perfect outstanding title in the borough of Erie, which was a complete bar to the plaintiffs’ recovery upon their own showing. There was error, therefore, in the refusal of the court to affirm the defendant’s 1st point, and in saying in reply to it that the Act of April 8th 1833 did not give the land in dispute to the borough of Erie.

But the learned judge below adopted a different view of the case. In his own language in his answer to the defendant’s 3d point, he regarded “ the special legislation on both sides respecting this land as having originated in mistake of the facts, and therefore valueless in settling the question of title.” He dismissed therefore from consideration the grant contained in the Act of 1864 as inoperative, and, as we have seen, he was clearly right in so doing. The mistake, according to his opinion, was in supposing that there was any strip of land left by the viewers between the west line of the one hundred acres and the west line of -the section. He states in his general charge that the viewers “ selected one hundred acres in the south-west corner of said third section of the town of Erie as originally located. So their report and draft, filed and approved, distinctly state, and so all the world have understood it from that day to this, and subsequent maps and diagrams are made up on this basis.” We have not been furnished on our paper-books with the report and draft of the viewers, nor with the subsequent maps and diagrams to which the learned judge refers. But as no exception was taken, and no error has been assigned to this part of the charge, we will assume all this to be correct in point of fact, and sustained by the evidence in the cause. It makes the plaintiffs’ case no better. If this was as stated by the learned judge, then the west line of the poor-house tract and the west line of the third section were the same line — identical—and there was no strip of land between them. How, then, could the plaintiffs have a verdict for the land described in their writ, between the two lines and in the third section ? There was no such land in existence, and at least without an amendment of the description in the writ, there could be no recovery. How could the sheriff deliver possession of lands between the west line of the poor-house tract and the west line of the third section, if those two lines were one and the same ? The verdict and judgment, unless qualified, follow the description in the writ.

The learned judged considered, and if the facts upon which he relies were in evidence as he states them, he was undoubtedly right, that if the land in dispute is in section three, it belongs to the poor-house tract. The plaintiffs were entitled to recover on their title to the poor-house tract. That they had such title as trustees “for the use of a poor-house for the county of Erie,” we think very clear. The reservation in the Act of 1833 was by necessary implication, if not by express words, a grant of the 100 acres to the county of Erie for the use expressed. Who was to erect the poor-house, and manage and control it when erected ? Surely the county through its commissioners. The title to the Act of 1864 so states it and properly states it — “ the tract formerly granted to said county for the use of the poor of said county.” The learned judge permitted the plaintiffs to recover on this title doubtless as trustees 'of the charity. Yet he considered that the defendant was not entitled to avail himself of the bar of the Statute of Limitations, because, as he instructed the jury, “it belonged to the Commonwealth, and against her no length of possession would give title.” We think that the learned judge fell into manifest error in refusing to affirm the defendant’s 2d point as to the Statute of Limitations, and by saying that there was no sufficient evidence given in the case to raise the question there propounded. The title of the Commonwealth to the poorhouse tract was divested by the Act of 1833 and vested in the plaintiffs. As against them, the running of the statute commenced on the day of the passage of that act, if the defendant was then in peaceable and adverse possession of the land in controversy, and so continued until the commencement of the action. This was a period of more than thirty-one years. That the Statute of Limitations runs against a county or other municipal corporation, we think cannot be doubted. The prerogative is that of the sovereign alone: Nullum tempus oecurrit reipubliece. Her grantees, though artificial bodies created by her, are in the same category with natural persons: Glover v. Wilson, 6 Barr 290; City of Cincinnati v. Evans, 5 Ohio St. Rep. 594. That the defendant had adverse and peaceable possession, so as to constitute a bar if he could set it up against the plaintiffs, was an undisputed and indisputable fact in the cause. It was shown by the plaintiffs’ own testimony. Thomas .Willis, a witness produced by them, testified: “ Brown (under whom defendant claimed) had a field cleared, and a fence on tbe west side of the poor tract as then understood” (in 1825). “ There was the same fence then that is there now;” “same field occupied by Brown and Evans ever since; the fence has never been moved.” There was no other evidence upon the subject in the case, as far as appears upon the paper-books. Upon this showing by the plaintiffs themselves the defendant below was entitled to a positive instruction from the court to the jury in his favor.

We do not deem it necessary to consider particularly the remaining assignments of error. That the jury were misled by the charge of the court we think already sufficiently shown. The question of the statutory presumption that the title was out of the Commonwealth did not arise. As we have seen, her title was divested by an actual grant. Although the description in the writ was undoubtedly rather loose, yet a protraction of the line marked on the ground south of the land in controversy in a straight direction to the north-west corner of section third, would have enabled the sheriff to give possession of all the land lying eastward of it to the plaintiffs.

Judgment reversed.