Bosch v. Hoffman

Opinion by

Beaver, J.,

Prior to January 21,1857, Messrs. Wert, Stryker and Murray claimed to be the owners of five consecutive tracts of land situate on the Lehigh river in Carbon county, surveyed in pursuance of warrants in the names of Betsy Rice, Joachim Wigman, John Steiner, William Horsefield and John Christ, respectively. On the date above mentioned a deed was made from Murray, Stryker et al. to one Richard Pirn in compromise of a certain action of ejectment, then pending in the court of common pleas of Carbon county, brought by Richard Pirn against Samuel D. Stryker and a certain Josiah A. Cole, which was compromised and settled upon the terms that the tract of land in the warrantee name of William Horsefield, containing 406 acres, was to be equally divided between them, each party to execute to the other a quitclaim deed of one-half; the said Samuel D. Stryker to have’the half adjoining the tract in the warrantee name of John Christ, which was the southern tract of the series above mentioned, which is the southwest side of the tract, and the said Richard Pirn to have the half adjoining a survey in the warrantee name of John Steiner, being the north side of the tract.

July 5, 1878, Wert, Stryker and Murray and their wives conveyed a part of the tract surveyed in the warrantee name of Betsy Rice, being the extreme northern tract of the body of lands above described, to John Bosch, the husband of the plaintiff, in which deed it is provided that the road known as the Bark road, commencing near the southwest corner of the John Steiner tract near the-east bank of the Lehigh river and running in a northwesterly direction, is to be reserved and kept open. This road begins at the southwestern corner of the Steiner survey or, as is shown on the draft of the plaintiff and as some of the witnesses testified, at the extreme northwest corner of the William Horsefield, and there is no dispute, as we understand it, that at the time of the purchase of Bosch from Wert, Stryker and Murray there was a road either beginning or terminating at that point and connecting with a ferry which there crossed the river.

The claim is made by the plaintiff that, because of that reservation and because of the necessity of the case, Bosch had a right of way through the northern half of the William Horsefield tract which did not then belong to Wert, Stryker and Murray, but belonged to Richard Pirn or his successors in title. It is very clear that Wert, Stryker and Murray having conveyed the title of the northern half of the William Horsefield to Pirn in 1857, without reservation of any right of way through the land conveyed, could not have had an easement upon and over, the said land and indeed it does not appear that there was any road then in existence over the said land. When, therefore, they made their conveyance to Bosch, they could convey only what they had, and Bosch could not have an estate or interest or easement in, over or upon the land conveyed by his grantors prior to the time of their conveyance to him. The defendant Hoffman was the owner of a portion of the southern half of the Iiorsefield tract which was conveyed to him by Wert, Stryker and Murray in 1885; but, in order to reach the lands of Hoffman, it was necessary to cross the northern half of the William Horsefield tract, there being but one road running across the entire width of the tract which connected with the road passing through the portion of the southern half of the tract owned by the defendant Hoffman.

The testimony clearly shows, and there is practically no denial of the fact, that these tracts of land were open woodland from which the timber had been cut and removed and upon which there was a regrowth of the timber in many parts, and that for the purpose of removing the said timber log roads had been opened and used in many directions, the Bark road which led to or from the river being well defined and kept open for public use. There do not seem to have been, so far as the evidence shows, any public roads regularly laid out, through these several tracts, although what is called the Buena Vista road and the state road seem to have been taken for granted as public roads.

A road seems to have been constructed from the Bark road on the John Steiner tract entirely through the William Horse-field tract and connecting with a road on the John Christ tract south of it. Across this road on the land of the defendant bars were erected for the purpose of restraining his own cattle and shutting out the cattle of others. The plaintiff, with her husband and daughter, appeared at these bars, claiming the right to pass through them. This was denied by the defendant Hoffman and a condition annexed to their passage insisted upon — that they could go through only upon the promise that they would restore the bars whenever they passed. The husband seemed to be willing to accede to this, but the wife refused to make the promise and finally persuaded her husband to unite in the refusal. Hoffman insisted upon the condition upon which they should be allowed to pass and they finally turned and retraced their steps, the plaintiff walking to White Haven and returning to her home by another road on the western side of the river. She claimed to have been overcome by her walk, from which she did not recover for some time, and for damages resulting therefrom she brought suit against the defendant Hoffman and the men who were with him repairing his bars at the time the plaintiff and those accompanying her attempted to pass.

Upon the trial of the case, a verdict was rendered for the plaintiff, but, upon a motion for a new trial and for judgment non obstante veredicto, the court, after mature deliberation and an exhaustive opinion filed, granted the motion for judgment n. o. v. From this final disposition of the case an appeal was taken, and the . only assignment of error is the action of the court in making absolute this motion.

In this opinion the court below states the facts more fully than we have done. In it the court says: “In a suit by the same plaintiff against the same defendants for the’same cause of action, No. 29, April Term, 1907, the plaintiff based her right of recovery upon the right to pass over this alleged right of way over the land of Conrad Hoffman, claiming that she had acquired said right by prescription. The court entered a compulsory nonsuit on the ground that since the act of 1850 no right of way could be acquired by user or prescription through uninclosed woodland, the land over which this alleged right of way passes being uninclosed woodland. (For discussion of this subject see opinion filed in said case refusing to take off the compulsory nonsuit.)” We do not find, on an examination of the evidence, that the record of this suit was given in evidence, but the testimony is so clear and unequivocal and practically uncontradicted that the lands referred to were uninclosed woodland that it is not difficult to reach the conclusion that, if there was such a suit as the court refers to, the nonsuit was very properly entered; and for the same reason we would reach the conclusion in this case that the plaintiff having acquired no right of way over the defendant’s property by prescription, she was not entitled for that reason to recover.

It is equally difficult to understand how the plaintiff could have claimed a right of way by necessity or by implication over the northern half of the William Horsefield tract which was not owned by the grantors when they made the conveyance to her husband of the tract or parcel of land on the northern tract, of the batch of surveys, surveyed in the warrantee name of Betsy Bice. If she claimed it by an approach from the John Christ tract on the south over the southern half of the William Horsefield survey, there would have been no connection therefrom to the northern line of that survey and, therefore, could not have been claimed, it seems to us, as appurtenant in any way to the tract of land occupied by the plaintiff’s husband in the extreme northern tract of the body of lands referred to. From either point of view, therefore, it seems to us that the northern half of the William Horse-field tract was an impassable barrier to the acquisition of any continuous right of way from the Steiner tract on the north of the William Horsefield to the Christ tract on the south of it, or from the Christ tract on the south to the Steiner tract on the north.

This question is so fully argued by the trial judge in his opinion on the motion for judgment n. o. v. that it seems to us to be unnecessary to argue it at length here. Indeed, upon a careful examination of the defendant’s points, as presented at the trial, it seems to us that it would have been perfectly proper for the court to have directed a verdict for the defendant, there being practically, under the evidence, no disputed facts as to the material points involved to be submitted to the jury. The case seems to us to be entirely free from difficulty, and we have no hesitation in reaching the conclusion that the judgment was properly entered for the defendant, notwithstanding the verdict, there being no evidence of any kind that the owner of the upper half of the William Horsefield survey ever in any way, by grant, permission or otherwise, vested in the plaintiff or her husband any right of way over his land. There was, therefore, a fatal physical break in the continuity of the plaintiff’s claim, even if her legal position, which we need not argue, had been sound.

Judgment affirmed.