Reiter v. McJunkin , 1900 Pa. LEXIS 385 ( 1900 )

Opinion by

Mr. Justice Green,

The facts involved in the present contention are sufficiently set forth, together with the question arising upon them, in the opinion of this Court, when the case was here before, 173 Pa. 82. On the last trial in the court below the learned trial judge followed our ruling with great care and preciseness, and committed to the jury with perfectly correct instructions the very question stated by our late Brother Williams in the former opinion. The charge of the court was in exact compliance with our decision. Thus, the jury was instructed as follows: “ There are two questions to be submitted for your determination, and in submitting them T follow strictly what I believe the instructions of the Supreme Court with reference to this case. And the first question is, whether the respective owners of these farms have agreed upon the location of the division line between the same as claimed by the defendant, built their division fence accordingly, and held and occupied respectively up to the fence, as their common boundary, for more than twenty-one years before this suit was brought. If you find that they have done so, in other words, if you determine this question in favor of the defendant, he will be entitled to your verdict. But if you find they have not done so, in other words, if you determine this question against the defendant and in favor of the plaintiff, you will then inquire and determine the exact location of the warrant or patent line, and if you determine that to be as claimed by the plaintiff, you will find a verdict for him for the land in dispute, with six cents damages and costs. But if you determine the true location of this line to be as claimed by the defendant, you will simply find a verdict for the defendant.” Nothing could be fairer than this, and. the charge gave to the defendant every possible opportunity he could have, or claim to have, to get a verdict in his favor. The charge was in such absolute conformity with the opinion of this Court that we could not convict the trial judge of error without reversing ourselves. The jury rendered a verdict for the plaintiff, as another jury had already done. The discussion of the question, whether the verdict ought to have been rendered as it was upon all the facts, it is not for us to decide. It was the special function of the jury to decide it, as the question was one of pure fact, and we do not propose to consider the details of the testimony, or any of them. Such discussion is not within our legitimate province. This disposes of the fifth and sixth assignments of error.

The remaining assignments relate to the rejection of certain disputed offers of testimony. The first and third assignments have been effectively disposed of in the opinion of the Superior Court. They assume that the determination of what was the recognized division line between the parties rested with the witness and not with the jury. What was the “ recognized ” division line was the whole subject of the controversy, and as a matter of course to be determined by the jury alone upon all the testimony, and not by any one witness upon any or all the evidence. Both of the rejected questions required the witness to answer that there was a “ recognized division line ” which he certainly could not do. The second and fourth assignments are equally untenable. The witness, the defendant, was clearly incompetent under our act of 1887 to testify to the matters inquired of, as is so clearly pointed out in the opinion of the Superior Court. It is there tersely and forcibly said, “The right of Grubbs had-passed to the plaintiff. Grubbs was dead. The defendant therefore was incompetent as a witness to prove an agreement for a consentable line between him and. Grubbs in his lifetime.” As we find no error on the record the assignments of error are all dismissed.

Judgment affirmed.