Kennedy v. Erdman , 150 Pa. 427 ( 1892 )

Opinion by

Mb. Chief Justice Paxson,

Litigation about line fences is one of the most expensive luxuries known to the law. This case is not an exception to the rule. The fence in controversy divided the property of the plaintiff from that of defendant, Karl Erdman. It appears to have been an old fence, and to have been standing on the same line for a long period of time, perhaps. fifty years. For some reason the defendant, Erdman, became dissatisfied with its location, alleging, as we understand it, that in some places it encroached upon him as much as two feet. Assuming to decide the law and the facts in his case in his own favor, he took down the fence, and placed the rails and posts on the land of the plaintiff. The jury took a different view of the matter, and returned a verdict against the defendants of -$504 damages, with costs of suit. When to the damages are added the costs, counsel fees, and the expense of printing a paper-book of one hundred and sixty-four pages, we may safely say that controversies of this kind are a luxury.

The jury evidently took a liberal view of the damages, as their verdict is $4 in excess of the plaintiff’s claim, as set forth in their statement of their cause of action. This excess of §4 was remitted by the plaintiffs below upon an intimation from the court that if it was not done, a new trial wmuld be granted. Had the learned judge gone further, and reduced the verdict by at least one half, it would have done no violence to the justice of the case. The verdict is not only compensatory, but highly punitive. In view of this fact, we would gladly help the defendants if we could do so in accordance with the recogonized rules of law. A careful examination of the voluminous record, however, fails to disclose any error which would justify us in reversing the judgment.

The first specification alleges that the court erred in making the order of November 15,1890, directing a certified copy of the record to be served on David Baughman, to which Karl Erdman, defendant, excepted. This order grew out of an amendment of the record changing the name of a party defendant. The suit as originally brought was against Karl Erdman and Jacob Baughman. At some stage of the proceedings the plaintiff discovered that Jacob Baughman was not the defendant he wanted, but that David Baughman was the person who assisted in taking down the fence. He accordingly obtained permission to amend the record by substituting the name of David for that of Jacob. It was not a mistake in the name, but a mistake in the man. The next difficulty that presented itself was that David Baughman had not been served with process and was not in court. The plaintiff therefore obtained the order complained of, and had it served with, a certified copy of the record upon David. The defendant, Erdman, excepted to this order. David Baughman did not except because he was not in court and could not except. Why Erdman excepted does not appear. It could do him no harm to have a co-defendant added in a case of trespass to assist him in paying the damages. However irregular this proceeding, it was cured by David’s coming into court, and taking part in the trial as a party defendant. We do not regard this matter as important, and it is referred to only that it may not be supposed we have overlooked it.

It is difficult to see any substantial objection to the evidence referred to in the second specification. The object of it was to show malice and ill-will on the part of the defendants, and that the trespass was wanton and aggravated, for the purpose of enhancing the damages. Aside from this, the specification is not assigned in accordance with the rules of court.

We are unable to see the relevancy of defendant’s offer of evidence, as contained in the third specification. The defendants proposed to ask the plaintiff upon cross-examination “ whether or not prior to the removal of this fence in 1889, Edward Parr’s heifer was not in his corn on a Sunday and whether or not he, the plaintiff, and one William Grove did not go with other people and put her out, for the purpose of contradicting, and in mitigation of damages.” We do not understand how the fact that Parr’s heifer was in the plaintiff’s corn on a Sunday could operate in mitigation of damages; and as it had no possible relevancy to the issue, the plaintiff could not have been contradicted, if he had denied it.

The fourth, fifth and sixth specifications may be considered together, as they all relate to the same subject. They refer to an offer of evidence, varied somewhat in each specification, to show that about 1870 a compromise line had been run by a surveyor. The offers are too voluminous to be repeated. If admitted, they would have been insufficient to establish the line, and would not be evidence for that purpose. Nor do we think they were competent in mitigation of the damages. The most that the proposed evidence amounted to was loose conversations between defendant, Erdman, and plaintiff’s predecessor in the title. They amounted to little, and were never acted upon. In view of the fact of plaintiff’s evidence, which, upon this point, we do not understand to have been seriously contradicted, that a fence had existed, been kept up and maintained where this one stood for about half a century, that plaintiff and those under whom he claimed, had been in the open, peaceable and exclusive possession of the land, and had cultivated it up to that fence, with the uninterrupted use of the lane or alley in connection with his place during all that time; and in view of the further fact that the defendants were remonstrated with, prior to taking down the fence, and yet proceeded to do so with a strong hand, we do not think this loose conversation, which occurred twenty years ago, entitled, to any weight upon the question of damages.

We find no error in the refusal of the defendant’s first point. The learned judge instructed the jury that upon the first two counts the verdict should be for the defendant, but left them to find a verdict for the plaintiff on the third count. The third count referred to was for demolishing the fence. We do not know of any reason why a verdict for the plaintiff could not have been rendered upon this count: Erie City Iron Works v. Barber, 118 Pa. 19; Chapin v. Cambria Iron Works, 145 Id. 498.

By the defendant’s second point the court was asked to instruct the jury that there could not be a verdict for vindictive or punitive damages. This point was properly refused. To have affirmed it under the evidence would have been error. .

Judgment affirmed.