McCoy v. Hance ( 1857 )

The opinion of the court was delivered by

Knox, J.

—Although we have eight specifications of error, there is really but one question in this case. The learned president of the Common Pleas instructed the jury, that if the fence or any part of it, which was thrown down by the defendant, had stood, for twenty-one years, where it was standing when thrown down, the plaintiff was entitled to recover; if not, the verdict should be for the defendant.

That part of the charge upon which the error is assigned, is as follows: “A division fence of more than twenty-one years’ ■standing, although crooked, constitutes the line between adjacent landowners, even though the deeds of both parties call for a straight line between acknowledged landmarks.”

This instruction was right; and as the jury have found the fact that the fence thrown down by the defendant had stood as the division fence between these contestants for more than twenty-one years, it is wholly unnecessary to inquire whether there was, or was not, error in rejecting the declarations of George Martin, respecting the locality of the original line.

It is complained that the president of the Common Pleas did not notice the points submitted by the defendant’s counsel. These points were fourteen in number, and it is true that they W'ere not specifically answered. Nor was it necessary that they should be, as the case did not require further instruction than was given.

It is said that the verdict was for the defendant, on some of the counts, and it is alleged that there was error in entering a general judgment in favour of the plaintiff. As we have neither the verdict, nor the declaration on the paper-books, we will not interfere with the judgment entered below. At all events, we would only correct the judgment if erroneously entered upon all the counts, by entering it upon the particular counts found in favour of the plaintiff.

Judgment affirmed.