Pennsylvania Railroad v. Pearsol , 173 Pa. 496 ( 1896 )

Opinion by

Mr. Justice McCollum,

It is conceded by the parties to this suit that prior to the 3d of November, 1872, Peter Pearsol was the owner of the land in dispute, but it is claimed by the plaintiff that on that day he conveyed the same to its lessor, The Pittsburg, Virginia & Charleston Railway Company. The defendants have possession of the land and claim title to it under Peter Pearsol’s will dated April 20, 1881, and probated July 7, 1887. While it is undisputed that Pearsol on the 3d of November, 1872, conveyed to the above mentioned railway company a strip of his land, of the width of sixty feet, from a point in the division line between him and W. Hodgson to a point in the division line between him and John Horne, the location of the land conveyed was not defined in his deed. There was nothing in it by which it could be ascertained on what part of either division line the land which was the subject of the grant abutted, and it was necessary therefore for the parties to look elsewhere for evidence to establish its location.

The Pittsburg, Virginia & Charleston Railway Company commenced grading its road through the Pearsol lot sometime in the fall or early winter of 1872, and completed the same and laid a single track thereon in 1873, since which time there has been no material change in it at that point. The land in dispute lies between the railway tracks and the river and within thirty feet of the center of the former. The plaintiff bases its contention that this land is embraced in Pearsol’s grant to its lessor on the presumption in the absence of a designation of boundaries, that the center of the roadbed is the center of the strip of land conveyed by him. The learned court below conceded that “ in the absence of any testimony or facts or circumstances to the contrary” the presumption would entitle the plaintiff to a verdict for the land in suit, but thought there was evidence in the case from which the jury would be warranted in finding that it was not included in the Pearsol conveyance. The questions to be determined on this appeal are whether the evidence was admissible, and if so, whether it was sufficient to repel or overcome the presumption.

The negotiations which resulted in the conveyance were conducted in behalf of the railway company by W. W. Martin, who was its vice president, and authorized to purchase lands and secure rights of way for its use in the construction and operation of its road. It was a suggestive fact, that while he was called by the plaintiff as a witness and testified that the right of way through the Pearsol lot was located by the company’s engineers before the agreement of May 20, 1872, was signed, he did not testify that the location as then made included the land in dispute, nor was his attention directed to this important matter by either parly. Another fact of considerable significance is that when it was discovered that the locar tion as made interfered to some extent with Pearsol’s kitchen, which stood at the back of his house and next to the railroad, he was allowed $100 to move it “ out of the way of the road.” The fair inference from Martin’s testimony is that a portion of the kitchen was within the right of way as located by the company’s engineers, and that the main building and a part of the kitchen were outside of it. This inference accords with the direct and positive testimony of Herman N. Snee in regard to the lower line of the right of way and the construction of a Avail upon it, and Avith the last clause of the agreement of May 20, 1872, which was Avritten and witnessed by Martin. The company built the wall in 1878 in accordance with the understanding between Pearsol and its representative, and it has not been changed since. There is nothing in the deed, nor in the negotiations or agreement which preceded it, which indicates that the dAvelling house was included in the sale. The allowance of compensation for the interference with the kitchen does not accord with the theory which carries the lower line of the right of way beyond it. If this line passed through or below the main building there could have been no occasion for a separate assessment of the damages arising from the encroachment upon the kitchen. As we understand the evidence, the new kitchen was erected about four feet from the line on which the wall Avas built, and upon the land described in the summons. The circumstances to which we have referred support the contention of the defendants and are opposed to that of the plaintiff.

We think the testimony of Martin and Snee was relevant and competent, and that it had a decided tendency to discredit the claim that the land in suit was included in the sale to the railway company. We think also that this testimony was sufficient, if believed, to repel the presumption on which the contention of the plaintiff was based. It was not offered, admitted or used to set aside or modify a Avritten instrument, but to assist in ascertaining the location of the land conveyed, in regard to which the deed was silent. The cases which relate to the reformation of a written instrument by parol evidence of what occurred at the time of the execution of it are not applicable to the issue in the case before us.

The specifications of error are overruled and the judgment is affirmed.