Kron v. Daugherty

Opinion by

Orlady, J.,

This action of ejectment was brought to recover a strip of ground in the borough of Kittanning, on the trial of which the court refused all points submitted by the defendant, and directed the jury to return a verdict in accordance with the only point submitted by the plaintiff.

The land in dispute was a part of a tract which was designated in the general plan of the borough as outlot No. 7, and which, by a sketch in a deed of Johnston & Gilpin to George B. Daugherty and Harmer D. Daugherty, dated May 31,1865, was subdivided into four purparts, so that an alley ten feet wide was located between three of the purparts, east of, and 148 feet distant from Back street now Grant avenue.

It was claimed by the defendant that the true location of the alley was 177 feet three inches east of Back street, which location was evidenced by well-defined marks on the ground. The true location of this alley was the sole question in the case.

Evidence was offered in support of the defendant’s contention, but it was excluded under objection ; his fifth and sixth points being as follows : “ 5. That if the jury believe the evidence of Frank Reynolds, Ross Reynolds, K. H. Stivason and others, that there was an alley well-defined and marked upon the ground at the time of the sale of H. D. Daugherty to Geo. P. Kron, to wit: On the 5th daj? of February, 1872, and said deed of Daugherty to Kron called for an alley as the western boundary of the land then conveyed, then the distances in the deed and plot from Gilpin and Johnston to H. D. Daugherty and G. B. Daugherty must give way to the boundaries found upon the land. 6. When adjoining owners have for twenty-one years recognized and adopted a marked line as their mutual boundaries, they are each protected by the statute of limitations even though it is not the line mentioned in the deed.”

The true location of the alley was sufficiently doubtful to move the plaintiff to modify his claim by asking to recover the land described in the writ, “ with the exception, that out of precaution the west line of the land recovered is fixed by the middle of the alley dedicated as such in the deed by Johnston & Gilpin to the Daughertys, which by reason of the same being closed by Mrs. Stivason has been abandoned, and a new alley opened entirely on land of Harmer P. Daugherty, now Geo. P. Kron,” as stated in tlie point submitted by the plaintiff and in his argument before this court.

If the western boundary of the Kron lot was fixed in tlie deed by an alley ten feet wide, and that alley was plainly marked on the 'ground at the time of his purchase, his title extended no farther than the alley.

The learned trial judge instructed the jury that, under the undisputed evidence, for an uncertain time between 1868 and 1880, the piece of property in dispute was thrown out from the enclosure, owned by Geo. B. Daugherty, and that the statute of limitations did not apply to the case; but the evidence also shows that the fence of the lot was moved back, and, if not to its original location, was so placed that the land it formerly inclosed was used by its owner for special purposes in connection with the other part of the lot. On this phase of the case the evidence is not free from doubt, and it should have been submitted to the jury, as was requested in the defendant’s fifth point. The marks upon the ground, if clearly established, would be superior evidence of location to the scrivener’s record of the distance from the street to the alley. The mistake in a draft may be shown by the work on the ground. The latter is the survey, the former but the evidence of it. The one may be said to be the substance, and the other the shadow, the one the fact, the other its delineation. When they differ, the line on the ground must govern, just as an original will govern a copy; unless, indeed, where it is apparent that the work on the ground is a mistake, and it is shown to be so by extrinsic evidence: Caldwell v. Holler, 40 Pa. 160.

The contradictions between the courses and distances mentioned in the deed and the well-ascertained marks upon the ground must be resolved in favor of the boundaries found upon the ground, as held in Lodge v. Barnett, 46 Pa. 477, and Morse v. Rollins, 121 Pa. 537 ; and the burden of proving a different boundary from that marked upon the ground, and by which the parties have held, is upon the one claiming by the courses and distances in the deed: Dawson v. Mills, 32 Pa. 302. It requires no argument to show that when a man has acquired title to a strip of ground, the mere fact that he has set back his fence for his own convenience cannot affect his right and vest the title to the land in another. The evidence to prove the bar of the statute of limitations must be free from doubt, and is to be decided by its weight: Jones v. Hughes, 16 Atl. Rep. 849.

The second, third, fourth, seventh, eighth, eleventh and twelfth assignments of error are sustained, the judgment reversed, and a venire facias de novo awarded.