Kurtz v. Hoke , 172 Pa. 165 ( 1896 )

Opinion by

Mr. Justice Dean,

The plaintiff is the owner of a tract of land lying between the Lancaster road and Cornwall pike; there are about twenty-three acres in the tract; when he entered into possession of his land in 1855, only three to five acres were then cleared, the remainder being woodland; a lane connecting with the Lancaster road on the northwest extended for about one hundred yards, through the improved part, in a southeasterly direction, and then over the woodland of plaintiff, Bleistein and Smith, to a connection with the Cornwall pike. The testimony showed that the roadbed through the woodland had not been permanent, but changed as the land was cleared, keeping, however, all the time in the woods. Henry Hoke, one of the defendants, the other being his son, was the owner of a small tract adjoining this woodland, and of which he went into possession in 1861; his ingress and egress were over this road, through the woodland and lane, and such had been the ease as to the other occupants who preceded him; the whole period of the use of the road covering about seventy-five years, that is, of a road running in that general direction, but the evidence seemed to show the roadbed had changed to conform to the clearing of the land. There was also some evidence on part of plaintiff, that in 1882 there had been an agreement between Bleistein, plaintiff’s predecessor in title to part of the land, and defendant, by which the latter was granted voluntarily by Bleistein the right to use a lane running through the land; defendant to pay twenty-five cents a year for such use, keep the lane free from briers, and maintain gates. This agreement defendant denied. Plaintiff, alleging defendant neglected to perform his agreement, closed the lane by a fence, which defendant cut down, and thereupon plaintiff brought suit for damages. There was a judgment for defendants, and plaintiff appeals.

The court instructed the jury: — 1. That if such agreement had been made, and defendant had failed in performance on his part, plaintiff was entitled to recover. 2. That if prior to the act of 1850, which declared that no prescriptive right to a road through uninclosed woodland should thereafter be acquired, defendant had, by prescription, acquired an easement to the road through the woodland, and there was no abandonment after the act of 1850, the plaintiff could not recover. 3. That immaterial changes in the roadbed would not interrupt the continuity of the use, if it substantially remained the same road; that imperceptible. changes caused by washing of rains, and time, if the identity of the road remained, would not affect the acquisition of the prescriptive right. 4. That if defendant had surrendered a prescriptive right of way over the old road in consideration of a right of way through the lane, then plaintiff could not recover.

There was evidence bearing on each of these points, somewhat conflicting, but still evidence for the consideration of the jury, and we fail to see any error in the submission. It is true, as argued by appellant, that if the way once used had been abandoned or shifted, or if it was rambling sometimes along one line, and sometimes along another, as is held in Brake v. Crider, 107 Pa. 212, and Arnold v. Cornman, 50 Pa. 361, no prescriptive right was acquired; but the evidence warranted the instruction, and the court kept within the line laid down by these authorities, when it said to the jury: “ You must be satisfied that such a right exists — did exist for twenty-one years prior to the act of 1850, continuously and uninterruptedly, and further, you must be satisfied that it was substantially the same road from one end to the other; that is, you cannot establish a road with a variance of ten or twenty feet, or running anywhere over the timber land. It must be substantially the same road.” We see no error in this instruction under the cases cited. The wagon track on all roads, to some extent, changes by time ; in public roads, the thirty-three feet generally appropriated is within the public right of use ; the track, by reason of washing or other causes, by consent of the traveling public who use it, changes a few feet, sometimes to one side of the thirty-three feet and sometimes to the other, but the road remains substantially the same. Such a change in a roadbed acquired by prescription would not destroy the right.

But the affirmance of defendants’ fourth point, apparently, was manifest error. The act of April 25,1850, declares: “ That no right of way shall hereafter be acquired by user, when such way passes through uninclosed woodland; but on clearing such woodland, the owner thereof shall be at liberty to inclose the same as if no such way had been used through the same before such clearing or inclosure.”

There was evidence that the way through the wood had been used for twenty-one years after 1850 ; as to its use before that time, it was, on account of fading recollection of witnesses, less clear; after 1850, no prescriptive right could be established by mere user through uninclosed woodland; but at one end the way was by, and had always been by a short lane through improved land. Therefore defendant put this point to the court:

“4. The act of 1850 does not apply to user of a way, over any other than uninclosed woodland, and if the jury believe, that a greater or a large part of the way passed through arable land through an open lane fenced on each side, for more than twenty-one years prior to the destruction or removal of the cross fence by defendants, then the prescriptive right over that part draws with it the right of way through plaintiff’s woodland inclosed or uninclosed, and the plaintiff cannot recover.”

This the court affirmed, and plaintiff excepted. Such is the record as brought up to us; the written point and affirmation. True, the reporter’s notes and the statement of the court on the motion for a new trial, indicate that the point was not read to the jury; nor was the instruction embodied in it given to the jury in the general charge, but we must take the record as if made up under the act of assembly. The act of March 24, 1877, directs that when counsel shall request the court in writing to charge upon any particular point of law, the judge shall reduce the answer to the point to writing, which said point and answer thereto shall be immediately filed and become part of the record for purposes of error, and shall be considered part of the record for assignment of error. This record was made up in exact accord with this legislative mandate, and we must treat it as the record.

To affirm the point, as we have already stated, was error. It in effect nullifies the act of 1850. Every road through woodland necessarily runs into roads or ways on improved land; it extends from a habitation or improvement of the user, to the common highway, village or town. To hold, that because it runs for any distance through improved land, therefore it draws with it the right through uninclosed woodland, leaves the act of 1850 nothing, in the vast majority of cases, to operate on. The act is so plain, that it admits of but one meaning, viz : that a right by prescription to a road through uninclosed woodland cannot be obtained. The answer to this point is the single error apparent upon this record, and for that the judgment must be reversed.

Judgment reversed, and v. f. d. n. awarded.