Baxter v. Girard Trust Co. ( 1926 )

Argued November 30, 1926. This bill seeks to compel the removal of the wall of a building where it extends over and above the middle of a party wall. The court below dismissed the bill.

The parties hereto own adjoining lots in the City of Philadelphia. The east wall of plaintiff's building is a party wall, running north and south. It was built under regulations then existing, extending 6 1/2 inches into each of the adjoining owners' land, and is in two parts, separated by a light court. The part north of the court, ending on South Penn Square, extends 6 1/2 inches into defendant's lot at ground level, and from thence in a vertical plane to the top of his building. The wall at the court between the north and south sections adjoins defendant's land, likewise extending into it 6 1/2 inches. Here a fence surmounts it. The southern section extends into defendant's lot at ground level 7 3/8 inches, varying from thence to Ranstead Street, where it is 10 inches. The wall leans over defendant's lot as it rises to the top, where it is 10 7/8 inches on a line adjoining the court to 13 inches on the same line at Ranstead Street. No building had been erected by defendant or former owners on the lot adjoining the southern section prior to the one in question. The northern section of the wall was used by defendant's predecessors in title, having a building thereon. Plaintiff used the wall from South Penn Square through to Ranstead Street. Defendant, in 1922, removed the building on its lot along the front section of the wall. Preparatory to erecting a large building, it caused the land to be surveyed, and the above distances are taken from this city survey.

Defendant proceeded with its construction and built east of a vertical line from the top of plaintiff's building to the ground. The party wall was not used, and no part of its structure derives support from it. But when the top of the building was reached, defendant extended its walls over the party wall to the dividing line of the lots, as shown by the last city survey. It thus continues in a vertical line, supported by its own structure, and covers all but 1 1/2 inches of the southern section here in contest.

Title to both lots was acquired by deed and the land held by virtue of description by metes and bounds without reference to natural objects or other monuments; none was mentioned in the deeds. Plaintiff's building was erected in 1892, based on a city survey, and he claims that, if defendant is permitted to maintain its wall in its present position, he will be unable to build over the party wall or extend the building higher, thus being deprived of the full enjoyment of the land. He claims "title to the land in a perpendicular line from the top of the wall up and down." This is described in his bill as an irregular shaped piece of ground, "7/8 of an inch to 3 1/2 inches ground line, and 3 3/16 inches to 6 1/2 inches at the top of the building." The irregular shape comes from the wall leaning to the east. The case presents many novel features, and much might be written on it. The question at issue is serious to both parties, but, after all, it is to be answered by applying some well settled principles of law to the facts, or want of facts, in the case. In so doing we treat the case in line with appellant's contention.

Plaintiff claims, by adverse possession, title to land admittedly within defendant's paper title, and at one time in possession of its predecessors. The claim is not measured by rods or feet, but by inches and fractions of inches. To establish a claim for land by adverse possession in a bill to remove encroachments the burden is on plaintiff to prove the right with as much certainty as if this were an action of ejectment. Actual, continuous, adverse, visible, notorious and hostile possession of the land in question for more than twenty-one years must be shown. The claim here is to a supposed eastern line. Possession to the line during the statutory period must be shown to the satisfaction of the court: Miller v. Shaw, 7 S. R. 129; Henry v. Huff, 143 Pa. 548, 561. Where the quantity of land involved is small, the rule as to the location of the line is exacting; possession to the line during all the twenty-one year period must be definitely shown. The location must be clear enough to allow a chancellor to enter a decree and enforce it. We repeat, not only must the line be definitely established, but possession to that line for the statutory period must be shown.

The court below held that our decision in Campbell v. Duggan-Rider Co., 284 Pa. 19, controlled the case, and appellant disputes its application. Let us assume that it does not control and center our attention on the subject last mentioned. Plaintiff must first show an entry on defendant's premises. Here we omit the forceful comment of Mr. Justice SCHAFFER in Campbell v. Duggan-Rider Co., supra, on what constitutes an entry. The entry must cover the land up to the line of claim. His building shows, at thistime, an entry to the line. That is not enough. It must appear that the building when constructed, occupied the place it now does, to the limit contended for in the bill. If the plaintiff is not able to show the building was constructed as it now exists, he must show that for twenty-one years it covered the inches described and claimed in his bill, or a definite part of it; not for parts or fractions of the land at various periods, but for all the land all the time. True, at the hearing plaintiff showed a building now occupying the land. Was it so built in 1892? Did it then occupy the land, or has it occupied the land for twenty-one years last past? Did it in 1892 leantoward the defendant's land? If not, when did it begin? The northern section of the party wall, built at the same time as the southern section, with a building on defendant's lot occupying part of the wall, was apparently in line. Why did the south section lean? No plan was offered in evidence to show that the building as it now stands was constructed in accordance with that plan. Nor was there sufficient evidence, in view of the conflicting testimony, to overrule a finding that it does not stand as it stood in 1892. Nor was there testimony to show the building leaned then as it does now. The only evidence of occupation up to the lines claimed during the statutory period is as follows, the owner testifying:

"Q. Who built that building that now stands on the premises? A. I did. Q. When did you build it? A. Started in 1892. Q. So far as you know, is this building in the same condition as it was when it was built? A. It is, with the exception of what changes were made by the United Cigar Stores. They altered the front part. Q. Have you ever made any changes in the walls or in the floors or anything through the south portion of the building? A. None whatever, south or north, with the exception of what I mentioned. Q. So far as you know, is the party wall, the east party wall, in the same condition now as it was when it was built? A. It is in the same condition as it was when it was built, — the same as it was when it was finished."

"How far he knows" does not appear, and his knowledge may be much or little; it is not that clear testimony necessary in actions of ejectment, but it is on such testimony defendant's land is sought to be taken from it. Even if it be considered as clear proof, compare it as to the extent of the entry and the time it was made, or the occupation of the land to the limit of the lines claimed for twenty-one years, with other evidence. Plaintiff admitted to others that the lean toward defendant's land was partly due to an excavation in 1906. The uncontradicted evidence is that the building had settled badly, causing cracks, or, as testified by Effingham B. Morris, Jr., "We walked from the north end of the building to the south. As you passed the light court and came in the south room on the ground floor of their building, its floors are very perceptibly out of line, sagging to the east; the window frames are also very perceptibly out of line, some sagging to the east. In the south end of the light court, the same condition prevails, namely, that the windows at one end, the east end window, will be clear of the window sill by a perceptible amount, and the west end window will be imbedded in the sill, and that damage was entirely due to the excavation as he claimed, of the Girard Trust Company, in 1905 to 1908." As stated by the court below, "there was testimony from the building inspectors . . . . . . that the building of the plaintiff had settled, that the joists had moved about an inch at some of the floors. The fact that the plaintiff's building has settled is evident from the photographs taken on the ground before the erection of the defendant's building. . . . . . The cracks are apparent in the wall." Appellee earnestly contends, and there was reason to support it, that the encroachments both at the ground and above were due to the settling of the building from excavations made in 1906. Plaintiff's witness, Brennan, admitted the joists had moved an inch on the seventh floor, indicating a displacement toward the defendant's land occurring since 1892. He did not examine both ends of the joists where each could extend into the walls and move out the necessary distance to cover the lean. This testimony shows a part of the lean occurred after 1892; how much and when it first started does not appear.

Plaintiff failed, in a most essential element of his case, to show to the satisfaction of the court below an entry or possession of the land to the extent of the lines called for in his claim, or a definite part of it.

The chancellor found, on the disputed evidence, "The alleged illegal encroachment of the south portion of plaintiff's wall at the ground level from 7/8 of an inch at the south end of the light court to 3 1/2 inches at Ranstead Street is evidently due to some extent to the settling of the east wall of plaintiff's building, causing the floors to sag several inches. (2) The evidence reveals no acts or declarations on the part of the plaintiff showing the possession of the ground at the ground level or above the surface to have been hostile, open, notorious, such as to raise a presumption of notice equivalent to actual notice of adverse possession. (3) The testimony raises very grave doubt as to whether the line now claimed by the plaintiff was the line upon which the building was erected, or was due to a settling, sagging, or leaning of the building subsequent to its erection." As there is not sufficient evidence here to definitely fix, during the period of twenty-one years, the location of the eastern line of the lean of his building, or whether the building, when constructed, covered the land at ground level as it now does, or to show definitely the quantity of land, if any, plaintiff is entitled to, his case falls within the principle of law announced by Mr. Chief Justice. BROWN in Rodgers v. Pittsburgh, Ft. Wayne, and Chicago Ry. Co., 255 Pa. 462, and stated again in Seitz v. Pa. R. R. Co., 272 Pa. 84, 88: "To recover any such fractional part of the ground described in the writ, the jury must have been able to describe the property for which such a verdict could be rendered and there was no definite and certain limits fixed in or presented by the plaintiff's testimony or appearing in the case. To have allowed the jury to pass upon that question would have been asking them to guess at the metes, bounds and area." Appellant failed to show title to the thing claimed or to a definite part of it, and the findings of the chancellor are approved.

The decree is affirmed at the cost of appellant.