Koons v. Swartz , 47 Pa. Super. 217 ( 1911 )

Opinion by

Orlady, J.,

This action of trespass was brought to recover treble damages for timber cut, removed and converted to the use of the defendant, contrary to the Act of March 29, 1824 P. L. 152. In 1853 John A. Woodburn and wife conveyed to Isaac Koons, a tract of mountain land containing 300 acres, more or less, and described it simply by adjoinders, without courses, distances, or named monuments. The deed called for the land of Robert Boyd, as its western boundary, and the true location of this line is the only question involved in this controversy. Within a few weeks after the purchase by Koons, he had a survey made by one Rhoades, which gave the courses and distances of his purchase, but in making this survey there were no marks made on the ground on this disputed western line.

During the charge of the court to the jury, in a colloquy with the plaintiff’s counsel, the court said, “The defendant contends, and we think with a great deal of force that if Mr. Rhoades marked trees on the eastern line, and marked them on the northern line, the probabilities are, they were marked on the western line.” Standing alone this would be reversible error, as there was no question of probability in the case. The important fact was, where was that line located? There may, or may not have been reasons for not marking it, and its true location was purely a question of fact to be determined by the jury.

The plaintiff had two surveys made of this property, yet neither one showed any marks on this western line, and his surveyors did not testify that the line as claimed by the plaintiff was the correct one. In order to make it the correct line it would have been necessary to have extended both the northern and southern calls of the Rhoades survey about eight perches; and neither surveyor submitted a draft of his work for examination by the jury.

The principal contention on the part of the appellant is that the case was not properly submitted by the trial judge. The court below affirmed the eleven points for charge presented by the plaintiff, and it is apparent that the trial judge accepted the theory of the defendant as the correct one. It is impossible to preserve or reproduce the manner, accent, gesture and emphasis of a speaker, and the manner in which an instruction is given, and the disputed facts as submitted to the jury must necessarily be left largely to the conscience of the trial judge. So far as the words used by the trial judge indicate his thoughts the several contentions of the plaintiff and defendant were clearly presented, the court stating, “The evidence was to some extent contradictory. You saw and heard the witnesses, and you have thus been enabled to judge of the evidence and the weight that should be given to their testimony, at least to some extent. Reconcile contradictions where you can, and when this cannot be done, try and find what the truth is. We have referred to the testimony briefly. You will consider it fully, all and every portion of it, and if we have made any mistake in citing it, you will correct it. We express no opinion as to the facts. They are for you to find and you alone.”

This case was zealously tried by able counsel and the jury were clearly instructed as to their duty in fixing the true location of the line in dispute. The evidence was quite confusing and was necessarily for the jury, and their findings that the division line was located as contended for by the defendant, was not so clearly against the manifest weight of the evidence as we have read it, as to warrant a reversal of the judgment. The answer to the defendant’s seventh point was a proper one under the facts of the case, and the -jury were told that if they found that the offer of the defendant to pay a nominal sum of money was for the mere purpose of compromising a demand of the plaintiff, and solely for the purpose of avoiding trouble and expense of litigation, it should not be treated by the jury as an admission that this sum or any other amount was due by the defendant to the plaintiff: Pirhalla v. Duquesne, ante, p. 000. The burden of proof was on the plaintiff to establish the true location of the line, and that the defendant had cut the trees within that line on the Koons tract.

We do not find any reversible error in the record. The judgment is affirmed.