Krepps v. Carlisle

Opinion bt

Mb. Justice Dean,

By articles of agreement dated the 19th of March, 1829, Neal Gillespie sold to Samuel J. Krepps, for the consideration of $1,400, a piece of land in the borough of Brownsville, Fayette county. The land was described as “situate on the southeast side of Water street in the borough of Brownsville, adjoining lots of Jonathan Binns, George Shuman and others, and now in the tenure of John Snowdon, together with all the bottom land on Dunlap’s creek attached to and adjoining the same, with the exception and reservation of a lot of ground running from the corner of Eli Abram’s lot, or the lot now in said Abram’s occupancy, to the east end of Dunlap’s creek bridge, and extending back from the front on Water street 60 feet.”

The land described in this agreement, it is not disputed, passed to these plaintiffs. Afterwards, on 13th of June, 1832, the same Neal Gillespie, by deed conveyed to Eli Abrams the part reserved, describing it as, “ All that piece of ground situate in the borough of Brownsville, on the south east side of Water street, extending from the lot now owned by Eli Abrams, to the east end of Dunlap’s creek bridge and running back 60 feet from the front' of Water street.”

The title to the land described in this deed, it is not disputed, passed to Samuel Thompson, one of defendants. Running the line of defendant’s lot from the Abrams lot owned by Abrams before the sale by Gillespie to Krepps, the ancestor of these plaintiffs, and before the conveyance to Abrams by Gillespie, to the east end of Dunlap’s creek bridge, where the end of the bridge is now, would give the land in dispute to defendants ; it would be excluded by the reservation in the articles of agreement, and plaintiffs would have no right to the possession. But plaintiffs alleged, and adduced evidence at the trial tending to show, that 60 years ago, when the articles of agreement were made with Krepps, and the deed made to Abrams, the east end of the bridge was not where it is now; that it was within three or four feet of Abrams’s house, and that in the years following, 1829 and 1830, it was so recognized by both the grantees of the Gillespie title. This evidence was met by contradictory evidence on part of defendants, and it was wholly a question of fact for the determination of the jury. Plaintiffs’ location of the eastern end of the bridge over Dunlap’s creek, if the jury found that was the true location when the grants were made, gave the lands in dispute to them. On the other hand, if the weight of the evidence failed to convince the jury that this was the true location, plaintiffs had no right to the possession. The court below, assuming, as the parties themselves assumed, that this was the turning point in the case, in a very clear charge submitted the evidence to the jury, who found for plaintiffs. Judgment having been entered on the verdict, defendants took this appeal, assigning seven errors to the charge.

■ They relate for the most part to alleged verbal inaccuracies of the court in repeating the testimony of witnesses. Of course, in referring to testimony, the court should give correctly the substance of it, and caution the jury who have heard it, as to their right in determining exactly what fell from the lips of the witness; but the court is not bound to repeat it verbatim, nor is the charge, in the hurry of a common pleas trial, necessarily to be a polished essay on the law and the facts bearing on the issue. If this were so, the delay incident to jury trials would be a practical denial of justice to suitors. If the alleged mistakes in narrating the facts were of the gravity now alleged b}^ appellant, the counsel ought to have called the attention of the court to them immediately after the charge. As he did not do so, it is fair to presume they appeared to him as of as little consequence then as they seem to us now.

As to the statement that plaintiffs’ alleged location is absurd and highly improbable, it is sufficient to say it was possible, even in view of the present surroundings; how it may have appeared under wholly different ones, sixty years ago, to the parties dealing concerning it, is not clear; it is enough to say, the court was entirely right in leaving the fact to the jury; it could not have done otherwise without error. The charge is a fair, unexceptionable submission of the contradictory testimony on the disputed location of the eastern end of the bridge over Dunlap’s creek. Therefore the assignments of error, from second to eighth inclusive, are overruled.

But defendant’s first assignment of error, complaining of the rejection of Samuel Thompson’s testimony, is more serious. It was admitted that John B. Krepps and all his predecessors in title were dead; the witness was a party of record. Defendants’ counsel proposed to prove by him that, since the death of plaintiffs’ ancestor, the location of the old abutment of the bridge had been uncovered by a flood, and to prove the location of it as witness saw it at that time. To this plaintiffs objected, on the ground that the witness was incompetent to prove the existence of a fact in the lifetime of John B. Krepps or his predecessors in title. The court sustained the objection.

This was error, and we cannot agree with the learned court below, in its opinion on the' motion for a new trial, that, even if error, it could have done defendants no harm. True, the question of the location of the old abutment, of itself, is not material; but its situation with reference to the stream might have afforded an inference as to the point where, with an abutment so located, the old bridge ended. Neither we, nor the court below, can certainly say what inference, favorable to defendants, the jury might reasonably have drawn from the fact sought to be proven; it is sufficient to say it was evidence bearing on the issue of fact in dispute. That the old abutment, uncovered by the flood after the death of John B. Krepps, had been built in the same place in his lifetime, was an inference which, however obvious, from the fact sought to be proven, would not warrant the exclusion of evidence by the witness of the existing fact. The offer was to prove a fact after his death, just as if the offer had been to prove that a man sixty years of age was living at time of trial; the fact admissible is the life, the inference of birth sixty years before, in the lifetime of the deceased grantor, necessarily follows, but the fact from which the inference is drawn is one of which the deceased grantor, in his lifetime, had no knowledge, and which is the subject of contradiction by any living witness: Rothrock v. Gallaher, 91 Pa. 108; Stevens’ Adm’s v. Cotterell, 99 Pa. 188; Porter v. Nelson, 121 Pa. 628; Patterson v. Dushane, 137 Pa. 23.

Therefore appellants’ first assignment of error is sustained; the judgment is reversed, and a new trial awarded.