Reiter v. McJunkin , 8 Pa. Super. 164 ( 1898 )

Opinion by

Beaver, J.,

No diagram or map of the land in dispute and of the different lines and corners referred to in the testimony and history of the case has been furnished us by either party. It is always difficult to consider a case of this kind satisfactorily, and it is practically impossible to understand the testimony fully, without such a map. We have, however, endeavored to make a careful study of all the testimony and think we have a clear understanding of the case generally. The, assignments of error, however, relate exclusively to the rejection of offers of testimony made by the defendant and answers to his points.

This case was twice tried in the court of common pleas of Allegheny county and was reviewed by the Supreme Court, as reported in 173 Pa. 82. The directions of the Supreme Court in regard to the submission to the jury of the question of the alleged division or line fence between the parties seems to have been carefully observed by the trial judge and are not complained of. We will, therefore, confine ourselves to a brief consideration of the assignments of error.

The first and third of these assignments relate to offers made by the defendant as to where the recognized line between the farms was located. Although somewhat different in form, the effect of the offers is the same. What constitutes the recognition of a division line depends upon acts or declarations of the parties who are interested therein. Whether or not these acts or declarations are binding is a conclusion to be drawn therefrom. We think the offers were properly rejected by the court, as being too broad and as taking for granted the very point in controversy. It is true that in the offer included in the first assignment of error the defendant offered to show that each of the parties to the action had cut timber on his own side of the line, which fact in itself was relevant and competent evidence, but he mates this conclusive in the offer by assuming that this act amounted to a recognition of the line, whereas it was but a single fact from which the jury wére to be allowed to draw the conclusion as to whether or not the line was thereby recognized by the parties. Besides, as is pointed out by the appellee, the court subsequently allowed the witness to testify fully on this point and the defendant had the benefit of this testimony before the jury.

The second and fourth assignments relate to the same question. The effort in both cases was to prove by the defendant conversations between the defendant and Grubbs, the plaintiff’s predecessor in title, and declarations by Grubbs as to the line between them. The objections to these offers were sustained by the court and the testimony ruled out. The defendant was clearly an incompetent witness for such a purpose, under the provisions of section 5, paragraph e of the act of May 23, 1887, P. L. 158. The language of this paragraph is very plain and seems to us to fully justify the ruling of the court below: “Nor where any party to a thing or contract in action is dead or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party be a competent witness to any matter occurring before the death of said party or the adjudication of luis lunacy.” 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.

The answer of the court to the defendant’s fourth point is correct. As was said by Mr. Justice Woodward in Potts v. Everhart, 26 Pa. 493 : “ A man is under no legal or moral obligation to set his fences on and not within the lines of his land,” and the mere fact that Grubbs set his fence within his line and cultivated only to the fence gave the defendant no right to the portion fenced out, unless the defendant had exercised rights of ownership therein and thereto, as was pointed out by the court, “ for more than twenty-one years before the bringing of this suit.”

The premises upon which the defendant’s fifth point was based were not correct and an affirmative answer thereto was very properly refused.

This disposes of all the questions involved in the case. The case was fairly tried and the jury had full and clear instructions as to their duty in regard to the facts involved.

Judgment affirmed.