Deppen v. Bogar , 1898 Pa. Super. LEXIS 321 ( 1898 )

Opinion by

Rice, P. J.,

The plaintiff claims under a deed from James I. Day, who claimed under a sheriff’s sale of a tract, of which this land is a part, as the property of the Treverton Coal & R. R. Co. The defendant’s first contention is, that the plaintiff took nothing by this deed, because Day had previously conveyed to Abraham Zeigler and Jehile K. Hoyt all the land that he purchased at the sheriff’s sale. He conveyed forty-two acres to Zeigler in 1865, but it is not pretended that this included the land in dispute, or any part of it. The description in the deed to Hoyt, upon which this question turns, reads as follows: “All that property lying in the town of Herndon, Northumberland county, Pennsylvania, belonging to me as per plot of survey made by J. R. Hilbish, surveyor, on the 22, 23 of May, 1866 and consisting of 36 acres and 31 perches of land, being the same property acquired by me by a sale of the sheriff on account of the Treverton Railroad.” Where a map or plan is referred to in a deed it becomes a material and essential part of the conveyance, and has the same force and effect as if copied into the'deed: Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92, and cases there cited. See also Armstrong v. Boyd, 3 P. & W. 458. The conveyance to Hoyt, as clearly as words could make it, was by the Hilbish plot. This was referred to for the manifest purpose of identifying the subject of the grant. The metes and bounds of the land, as therein described, were as effectually adopted by reference as if they had been copied into the deed. What the grantor intended to convey was, not all the land belonging to him within the uncertain limits of what was called “ the town of Herndon,” but all that certain tract belonging to him described in the Hilbish plot of survey. Therefore, in order to defeat the subsequent conveyance to the plaintiff it was incumbent on the defendant to show that this description included the land in controversy. Failing in tliis, and the uncontradicted testimony of Mr. Hilbish being that the land in controversy was not included in his survey, the court was clearly right in instructing the jury that there was no evidence that this title ever passed out of Day until March 14, 1891, when it was conveyed to George Deppen. The fourth, fifth, sixth, seventh, ninth and thirteenth assignments of error are overruled.

In connection with the deeds to Zeigler and Hoyt in 1865 and 1866, respectively, the defendant offered in evidence the assessment books of the township for 1865 and subsequent years, for the purpose of showing that the last assessment against Day was in 1865, when he was assessed as the owner of thirty-eight acres. The ultimate purpose was to lay ground for the inference that after the conveyance to Hoyt and Zeigler, Day had no land in the township, and, therefore, that nothing passed by the deed to the plaintiff. But the proposed evidence, standing alone, or, indeed, taken in connection with any other evidence that had been given, or was referred to in the offer, would have had no legitimate tendency to show that the land in dispute was embraced in the conveyances referrred to, or had been conveyed to other persons. What was embraced, or not embraced in those or other conveyances was susceptible of being proved by better evidence, namely, the deeds themselves, the construction of which was for the. court: and no sufficient ground was laid for the introduction of explanatory or secondary evidence of such weak and inconclusive nature as the nonassessment of the land in dispute hi the name of the owner of the recorded paper title. Therefore the court committed no error in refusing to receive the evidence at the time, and for the purpose for which, it was offered. Whether or not it would have been admissible after the defendant had introduced evidence in support of his claim of title by adverse possession is a question not fairly raised by the record, and we will not discuss it. The first and second assignments are overruled.

The deed from Day to the plaintiff calls for the line of the Pickersgill mortgage as the boundary of the land on the north. It is claimed by the defendant that this line is north of the Treverton railroad, whereas the land described in the writ is south of the railroad. It, therefore, became important, if not absolutely essential, to locate the lines of the Pickersgill mortgage. The accompanying draft shows the situation. The heavy lines show the plaintiff’s location of the land covered by the mortgage, and the dotted lines from the point F show, approximately, where the defendant’s surveyor diverged in running the lines. The description of the land begins and ends at a point in the center line of the railroad thirty-one feet distant from the bridge. The particular line to be located is the southern boundary of the mortgage, and' according to the plaintiff’s contention is the line designated as H I on the accompanying draft. Its course and length as described in the mortgage are N. 88 1/4 W. 628 feet to a point at low water mark on the river S. 15 1/4 W. 206 1/2 feet from the point of beginning.

If we start at A, the point of beginning, and run north, tracing the lines of the tract by the calls and the courses and distances, no difficulty is encountered, which affects the case, until we come to the line designated as G PI. Giving this its deed length, 1,179 feet, and it comes short 1,362 feet of meeting the line H I as the same is located by starting at the ending point of the description and running back over the last two lines to the point PI. The defendant’s surveyor stopped at the end of the deed distance of line G H, and from that point laying out the last two lines according to the courses and distances mentioned in the mortgage reached the results, first of failing to close the survey; second of locating the land covered by the mortgage eighty rods distant from the beginning point of the description, and also away from the river whereas, the mortgage expressly calls for the river as one of its boundaries ; and third of reducing the area of the tract in the neighborhood of twelve acres. This method of locating the lines by the courses and distances and ignoring everything else is so manifestly erroneous that it is not seriously insisted upon by counsel, and need not be discussed.

But it is argued, that, if that method ought not to be followed, the correct way to locate the line in controversy (PI I) and to close the survey, is to stop at X the deed distance of the line G H, and then run a straight line diagonally to the corner I on the river. The result will be to throw the line H I out of its course and double it in length, besides reducing the quantity of land intended to be covered by the mortgage very materially. But it is to be observed, that, so far as the evidence before us shows, there is no room for dispute as to the point of beginning and ending, nor as to the location of the lines A B, B C, C D, D E, E F and I A, nor is there any dispute as to the line B1 G, which materially affects the case. Nor is there anything in the calls, either for natural monuments or for adjoiners, to draw the lines H I or G H away from the courses given in the mortgage, except the discrepancy in length of the line G H. But the court held that this alone was not sufficient to draw this line away from the given course, and to double it in length, but rather, that, in order to close the survey, the line G H might be protracted beyond the length given in the mortgage. We fully concur in this conclusion. What is most material and most certain in a description will prevail over that which is less material and less certain. The object is to ascertain the intent of the parties, and the rule to find the intent is to give the most effect to those things about which men are least liable to mistake, and nothing is more common in locating the boundaries of land than to lengthen or shorten lines in order to conform to the calls. Either the length of the line G H is incorrectly given in the mortgage or both the length and the course of the line H I are incorrect. But in determining where the two lines meet to form the southwestern corner of the land the given course of the latter line is, taking all the elements of the description into consideration, a surer guide than the given length of the former line. By accepting it as the true boundary of the land on the south we conform to the description, with respect to the calls, the courses of the lines, the length of all the lines excepting one, and the quantity of land. “ Quantity, is a circumstance of slight, often of no weight in a question of title, but it may have a marked effect where the question is one of boundary. If there be two lines, one corresponding with the quantity of land in the deed, and the other largely in excess, the inference would have weight in determining the true line, especially when strongly assisted by other evidence : ” Kennedy v. Lubold, 88 Pa. 246, 247.

Moreover, this location of the northern line of the Deppen deed harmonizes with the other calls of the deed, whereas that claimed by the defendant would be entirely inconsistent with them.

Where a question of location or the application of a grant to its proper subject-matter depends upon extrinsic evidence it should, in general, be submitted to the jury; but when the law declares the method to be followed in locating the grant it is the province of the court, not only to instruct the jury as to the abstract principles of the law but to see that they are applied to the essential undisputed facts of the case. A court is not bound to submit a question to the jury upon clearly insufficient evidence, such as it could not sustain a verdict upon. There being no sufficient and competent evidence to justify a verdict locating the line in controversy north of the Treverton railroad, as claimed by the defendant, the court was right in refusing to charge as requested in his eighth point. The tenth,' seventeenth and eighteenth assignments of error are overruled.

The assignments of error which relate to the defendant’s claim of title by adverse possession may be considered together.

The land in controversy is a strip two and two tenths rods wide, extending along the line of the Northern Central R. R. Co. about twenty-six rods, and bounded on the other side by land which concededly belongs to the defendant. A little run crosses both tracts. Sometime in March, 1874, John Kline, the defendant’s predecessor in title, fenced that portion of the land in dispute, lying south of the little run, and from that time until the time of bringing suit, in October, 1895, he and his successors in title maintained such possession of it as, if hostile and uninterrupted, would give title by adverse possession. But the plaintiff gave evidence to show that on March 22, 1895, the defendant recognized and admitted his title in this way. He alleged that, in the course of some negotiations between them concerning an adjoining piece of land, the defendant promised to give up possession of the land in dispute or to take a lease of it, and asked for thirty days’ time within which he would either execute a lease or vacate. This allegation being denied by the defendant, the question of fact was fairly submitted to the jury, with the instructions, that, if they believed that the defendant made these admissions on March 22, 1895, they could not infer or assume, for the purpose of making the complete period of twenty-one years, that the fence was built prior to March 22, 1874, the burden was upon the defendant to show by some testimony at least that the land was inclosed prior to the last mentioned date. These instructions, both as to the effect of the alleged admissions and as to the burden of proof were clearly right. The element of hostility to the title of the true owner is an indispensable ingredient of adverse possession. The hostile possession must be continuous and notorious during the whole period. The claimant must, in the language of Chief Justice Gibson, “ keep his flag flying, and present a hostile front to all adverse pretentions.” If a person enters into possession of land, and holds it, without more, the presumption is that he claims title. A possession of more that twenty-one years, under such circumstances, would be adverse; and as sucb would give title. But if, when he enters, or afterwards, he does not claim title himself, but acknowledges the title of another, his possession must be taken as an entry or holding in subordination to the title of the person whose right he acknowledges. And this qualification of the rule is necessary to protect rights which might otherwise be lost by the fraud and artifice of the person in actual possession. A declaration that the right was in another, might be intended, and would frequently have the effect of putting the legal owner off his guard. Such a declaration is inconsistent with an adverse or hostile holding: Rung v. Shoneberger, 2 W. 23. Hence recognition of the owner’s title and an offer to purchase will effectually rebut the allegation of adverse possession: Miller v. Keene, 5 W. 348; Sailor v. Hertzogg, 2 Pa. 182. “ To suffer an occupant to amuse the proprietor with professions of submission till the title were barred by time, and then to set him at defiance, would give an effect to artifice which the legislature never intended to produce : ” Gibson, C. J., in Miller v. Keene, supra. So, where the person in possession agreed with the true owner that he would pay the taxes of the.whole tract for the use of the fields in his possession, and he continued so to hold, it was decided that his possession and payment of taxes enured'to the benefit of the plaintiff: Read v. Thompson, 5 Pa. 327. So where the owner, in reply to a previous letter of the defendant, refused to make a contract for the sale of the land but inclosed a lease of the same for one year, and the defendant wrote, in reply, giving reasons why he would not execute the lease sent him, but offering to execute the lease if the term were extended for two years instead of one, it was held that this was such a recognition of the owner’s title as to overthrow the defense of title by adverse possession even if, in other respects, it had been made out. These and other authorities that might be cited fully vindicate the charge as to the effect of such admissions as were shown in the present case. The fact that they were made on March 22, 1895, having been established to the satisfaction of the jury, the court committed no error in refusing to permit them to guess that the fence was built prior to March 22,1874. “ If the continuity of the possession is broken for a single day before the twenty-one years have elapsed, as is said in Olwine v. Holman, 23 Pa. 279, the previous possession goes for nothing, and the wrongdoer must begin de novo: ” Brolaskey v. McClain, 61 Pa. 146. The same strictness is observed where the possession ceases for a time to be hostile. The case of the wrongdoer is not to be helped out by charitable inferences not warranted by any testimony. The burden of proof was on the defendant. It was incumbent on him to show affirmatively that his entry was twenty-one years before the date of his recognition of the plaintiff’s ownership ; and if, from lapse of memory or other cause, the witnesses were unable to fix the date, he, and not the true owner must be the sufferer.

It is argued that the title was complete in the defendant on March 22, 1896, and the admission, if he made it, would not affect the same. But the plaintiff claims, and the court so instructed the jury, that prior to the time when IClien enclosed that part lying south of the little run there was no such adverse and exclusive occupancy of the land in dispute as is essential to give title by adverse possession. We have carefully examined all of the evidence with special reference to the assignments of error directed to this portion of the charge. While some of the defendant’s witnesses use general expressions, which, standing by themselves, might warrant a jury in inferring that the whole of the land lying between the river and the line of the N. C. B. B. was taken possession of for the uses of a coal yard and other purposes, yet a careful scrutiny of their testimony, taken as a whole, has convinced us, that the facts, as to the use of the land in dispute, even as asserted by them, are correctly summarized in the judge’s charge. Prior to March, 1874, the land appears not to have been inclosed, or cultivated, or occupied otherwise than by a drive way — not well defined — to the coal and lumber yards on the defendant’s land. The claim of a mere easement or other right in land less than the entire fee does not confer any adverse right to the fee simple; to have this effect under the statute of limitations the claim must be of the entire title, exclusive of the title of any other person. As illustrative of this general principle we refer to the case of Costello v. Harris 162 Pa. 397, where it was held.that a lower riparian owner who erected a dam, and overflowed the land of an upper owner, with the latter’s knowledge, and maintained the dam for over fifty years, acquired a prescriptive right to flow the land, but no title to the land by'adverse possession. It seems to us that this principle is applicable here. The fact that the owners of the land and their customers and visitors drive across adjoining land of a third person indicates no certain intent to claim more than a way, and, without more, such use will not ripen into a title by adverse possession to the fee of the whole of the lot thus crossed. But the defendant’s rights in this regard were fully protected by instructions to the jury, which, to prevent misapprehension of the point decided, it will be well to quote in this connection. “The plaintiff has conceded by a paper filed in the case this morning, known as a disclaimer, that they are not entitled to a verdict in this case for that portion of this strip north of the little run, used as a way into these operations, and they say it is a strip 13 feet wide along the western line extending from the northern line to the little run; they have given up their claim to that much. And if you find there is no more than that much used for a way into this operation, no more than that much reasonably necessary for a way, no more than what they have given up, then you would find for all the lands north of the little run for the plaintiff except the lands disclaimed. That would be all you would have to do, because you need make no finding for the land to which they have given up claim, 13 feet, but if you find there is more used there as a driveway than the 13 feet given up, or that more is reasonably necessary than the 13 feet given up, then you would have to find how much more is necessary and you would have to find for the defendant for so much of that strip north of the little run as is necessary for a way in and out to Mr. Bogar’s premises in excess of what has been given up or disclaimed and the balance for Mr. Deppen.” As to the land lying north of the little run, excepting that part used, and thus secured to the defendant, as a way, the court was justified by the facts in giving binding instructions to the effect that title in the defendant by adverse possession had not been made out. In Pennsylvania the rule is, that upon a given state of facts which are admitted or distinctly proved, whether possession is adverse or not is a question of law; but in a doubtful case, the truth of the facts must be submitted to the jury: Rung v. Shoneberger, 2 W. 23. The fact of possession is for the jury; the kind and length of that possession, to be effectual is for the court: Groft v. Weakland, 34 Pa. 304, 308. . Where such title is asserted, either by the plaintiff or the defendant, the court should see, that there is evidence to go to the jury on all the essential points. If it be wanting as to any of them, then an essential of title is wanting, and the duty of the judge is plain. He should instruct the jury that there is not sufficient evidence to make out the title: DeHaven v. Landell, 31 Pa. 120, 126; Olwine v. Holman, 23 Pa. 279, 285; Groft v. Weakland, supra; Huffman v. McCrea, 56 Pa. 95; Brolaskey v. McClain, 61 Pa. 146, 165. The third, eleventh, twelfth, fourteenth, fifteenth, and sixteenth assignments are overruled.

The third section of the Act of February 27,1849, P. L. 90, provides that where a highway has been vacated by authority of law, the adjoining owners shall retain the same to the center unless the ground was taken in unequal proportions from the then owners thereof and in such case they shall reclaim in proportion as contributed by such owners or by those under whom they shall have derived their titles. To entitle the defendant to an unqualified affirmance of his sixth point it was incumbent on him to show, that, (1) the land in dispute was originally a public highway; which (2) had been located wholly on land owned by parties from or through whom he derived his title; and (3) had been vacated by authority of law. The fact that in the deeds from Hoyt to Hanna and Rothermel (November, 1866), from Hanna and Rothermel to Kline et al. (1870), from Kline to Lahr (1882), and from Lahr to the defendant (1888) the defendant’s land is described as abutting on a township road does not establish "the fact, as against James I. Day and his grantee of the land in dispute, that all the land lying between the railroad and the land conveyed was a toAvnship road — ■ they not being parties or privies to the conveyances referred to. Much less would it warrant an inference that the alleged road was located wholly on land owned by those from whom the defendant derived title, and was vacated after Day’s conveyance to Hoyt. And assuming that the land in dispute was at one time a public highway yet if it was vacated before the date of the latter conveyance it reverted to Day, and the title did not pass to Hoyt unless his deed included it. The truth is, that the evidence as to the cxiste'nce of a public highway over or adjoining the land in dispute; its location and width; when and how it was established; the fact that it was vacated by authority of law, and when and how; the ownership of the land at the time, and other essential facts, is so vague, confused and uncertain that the court could not well have based any definite legal.instructions upon it; at all events the point could not have been affirmed, as it was drawn, without manifest error. The eighth assignment is overruled.

The case was well tried, and the judgment is now affirmed.