Stuart v. Line , 1899 Pa. Super. LEXIS 143 ( 1899 )

Opinion by

Orlady, J.,

After a trial on the merits of a case, a defect in the pleadings will not be considered as fatal, unless it is shown to have injuriously affected the trial, and a proper amendment will be considered to have been made: Chapin v. Cambria Iron Co., 145 Pa. 478; Eckert v. Schock, 155 Pa. 530; Com. v. Press Co., 156 Pa. 516. The statement filed in the case described the road in question as a public highway, while in the bill of particulars it was mentioned as “ a road through the land of the plaintiff.” The case was tried on the issue as defined in the plaintiff’s and defendant’s bill of particulars.

When a continuous and apparent servitude is imposed by the owner of real estate on a part thereof for the benefit of another part, and the respective portions are subsequently conveyed to different persons, the purchaser of the servient property in the absence of an .express reservation or agreement on the subject takes it subject to the easement or servitude thus imposed: Ormsby v. Pinkerton, 159 Pa. 458; Held v. McBride, 3 Pa. Superior Ct. 155.

The exchanges of land and the mutual advantages were a sufficient consideration and the parties cannot now be restored to their original condition by closing the road with a gate: McCarthy v. Kitchenman, 47 Pa. 239; Cannon v. Boyd, 73 Pa. 179; Geible v. Smith, 146 Pa. 276; Baldwin v. Taylor, 166 Pa. 507.

Whether the use of the way has been open and adverse for twenty-one years is a question for the jury, although concurrently used by the owner of the servient tenant, and an admission of a predecessor in title during his ownership that lie had no right to close a way is competent evidence against a subsequent owner of the servient tenant: Bennett v. Biddle, 150 Pa. 420.

Under the plaintiff’s evidence the original road was constructed by his grandfather or great grandfather, and the change of location of a part of it in 1877, would not give to the defendant any additional right to erect the gate. The termini were unchanged, and the alteration for a short distance along the course of the road did not affect the right to use the road where the gate was placed. As we have already suggested, there was sufficient evidence in the case to warrant the jury in finding as a fact that the location of an old road through the lands now owned by the defendant had been changed by the owner or parties in charge of the land, but was this question submitted under proper instructions ? The courts say: “ It seems that for many years there was an old road to the farm of plaintiff, and by some amicable arrangement between his predecessors in title and those under whom defendant claims, the old road was changed and a new road located leading directly to the Walnut Bottom road from the plaintiff’s farm.” This seems to assume the very fact in controversy nor was this cured by any definite instructions in the other portions of the charge. To say “ now if you find that this road has been closed where it should not be, by reason of the defendant placing a gate across it, and which he admits, and that he has not the right to do so, then you should render a verdict for the plaintiff for whatever damages .you think he has. sustained,” was not an adequate presentation of the questions of fact to be decided by the jury. It left the jury at liberty to range at will over the whole domain of law and fact and to render such a verdict as they thought best. Where the charge of the trial judge contains no clear statement of the questions involved, and no adequate presentation of any of them, and the inadequacy of the charge is such as to be in its effect upon the jury misleading, and its effect upon the defense unfair, the judgment will be reversed: Teitz v. Traction Co., 169 Pa. 516. The jury should be given the leading rule containing the questions suggested by the point: Reber v. Herring, 115 Pa. 599; Duncan v. Sherman, 121 Pa. 520.

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