Chisholm v. Thompson , 233 Pa. 181 ( 1911 )

Opinion by

Mr. Justice Moschzisker,

The manner in which the appellant’s paper-book was prepared and printed has added greatly to the difficulty of review. Many pages of testimony are duplicated in such a way as to lead to confusion; connected and essential words are left out of the findings and several important exhibits are omitted. Scarcely any of the assignments of error conform to the equity rules or the rules of this court. Equity rules 64-67 provide that after the adjudication is filed exceptions may be taken in the court below, “which exceptions shall cover all objections to rulings on evidence, to findings of fact or law or to the decree;” and if no such exceptions are filed, “all objections shall be deemed to be waived.” If exceptions are filed, they must be heard and passed upon by the court below “as upon a rule for new trial,” and “upon appeal to the Supreme or Superior Court such matters only as have been so excepted to and finally passed upon .... shall be assignable for error:” New Cumberland Borough v. Riverton Cons. Water Co., 232 Pa. 525. Court rule 29 provides that “each error relied upon must be specified particularly and by itself,” and rule 31 provides that when the error assigned is to the admission or rejection of evidence, the specification must give “a reference to the page of the paper-book where the matter may be found in its regular order in the printed evidence,” and “any assignment of error not according to this rule will be disregarded:” Kaufman et al. v. National Lumber Ins. Co., 000 Pa. 000. Each of the specifications of error, except the ninth, in some way offends against these rules, in that it fails to state where the testimony referred to can be found in the paper-book, or specifically to show that an exception was taken and pressed in the court below, or, if taken, to indicate how finally disposed of.

While we will not pass separately upon each of these faulty assignments, we have examined the matters covered by all of them and are not convinced that the decree of the court below should be disturbed. The deed to the plaintiff was made more than three years after the sale of the defendant’s property to the Y. M. C. A., and the grantors used especial care in describing the property conveyed to the plaintiff so as not expressly to include the wall in dispute. The frontage is not stated in the description and no dimensions are given, the lot simply being mentioned as “bounded on the .... west by lot of Young Men’s Christian Association.” The plaintiff now contends that the property so described included the wall claimed by the defendants as embraced in the conveyance to the Y. M. C. A. The description in the deed to the latter was, “All that certain lot ... . with the buildings thereon erected .... beginning at the corner of the lot of C. Claggett’s heirs and running thence eastwardly along Main street about thirty-eight feet to the corner of the house lately used as a dwelling . , being the property known as the Beeson store property, having erected thereon a three-story brick store on Main street. ...” The testimony shows that the dwelling house referred to was originally erected upon the premises of the plaintiff in or about the year 1824, two stories in height; that a building was erected on the adjoining lot, now belonging to the defendants, in about 1832, and that the wall in dispute from that time on was used in common; that about 1852 the wall was run up one additional story in order to place a third floor upon the defendants’ property; and that about 1872 a one-story structure was added in the rear of the defendants’ three-story building, the wall in question being extended for that purpose. Thus it appears that for almost three-quarters of a century the wall was used and treated as though it belonged to the premises now possessed by the defendants rather than to the adjoining dwelling house, and the frontage of thirty-eight feet in the defendants’ deed is sufficient to embrace it, within the fraction of an inch. The court was not bound to ignore all of these circumstances and to construe the deed of the defendants as excluding, and that of the plaintiff as including, the ground covered by the wall.

No question of jurisdiction was raised in the court below or on this appeal. As the case was tried, its determination was made to depend upon the construction to be placed upon the description of the defendants’ property, the strip of ground occupied by the wall and running of that width to the rear line of the property being the subject-matter in controversy. The plaintiff’s title and that of the defendants came from the same common grantors, and neither conveyance specifically referred to the wall; the question was, which of them included it. If the prior conveyance under which the defendants claimed, included the wall, of course the later one to the plaintiff did not. Had the description in the former conveyance plainly excluded the wall, then no outside evidence could have been considered; but .as the wall was not mentioned, we are not prepared to hold that the court below was bound to construe the words “to the corner of the house lately used as a dwelling,” which occur in such description, as excluding it. A description, “running to the corner of a property,” ordinarily would mean to the outside wall of the premises referred to; but if the property did not happen to have an outside wall, such description could not be taken to intend that which was not there. The court below has found that the premises in question did not have such a wall, but on the contrary that the only one in existence at that point had been treated as belonging to the lot conveyed to the Y. M. C. A and subsequently deeded to the defendants. This property was described as a lot “with the buildings thereon erected .... a three-story brick store-house.” The mention of a building may constitute a monument (White v. Williams, 48 N. Y. 334; Carroll v. Miner, 1 Pa. Superior Ct. 439), and we cannot say that the mention of the building in question could not be taken as constituting a monument which would include all of the ground covered by the structure and indicate the lines of the land.

At the time of the Y. M. C. A.’s purchase the common vendors owned both properties, and they could have conveyed according to any line they might have chosen: Breneiser v. Davis, 134 Pa. 1. It is more reasonable to believe that they retained a building without a west wall than that they sold one with no east wall. The expressed dimensions of the lot conveyed and the specific mention of the building in the description of the defendants’ property could well be construed as including the wall, unless the reference to the corner of the adjoining property plainly indicated otherwise; and what was meant by this reference was in dispute. “ The identity of a monument existing on the face of the earth with one referred to in a deed is always a question of fact” and “While monuments capable of being identified must always control courses and distances, the measurements of the lines whose courses and distances are given should not be disregarded in determining the identity of the monuments claimed to be found with those referred to in the deed:” Tyler v. Fickett, 73 Me. 410.

Under the circumstances, we are not satisfied that the chancellor committed error by considering the surrounding facts in determining the ownership of the wall and strip of land in question (Safe Deposit & Trust Co. v. Mfg. Co., 229 Pa. 295), and while we do not agree with the learned court below as to the applicability of some of the principles of law relied upon, we are not convinced of error in the conclusion reached.

The first eight specifications are dismissed, the last is overruled, and the decree is affirmed; the appellant to pay the costs of this appeal.