Knights of Pythias Benevolent Ass'n of Coal Centre v. Leadbeter

Opinion by

Rice, P. J.,

Undoubtedly if the persons named made the agreement with Thomas Piper specified in the plaintiff’s ninth point, the continued use by them, or the public as their successors, of the surplus water under said agreement could not mature into a right which would justify them in depriving the plaintiff, as Piper’s successor, of its right to the first use of the water; but it would not follow as a necessary legal conclusion that' the defendants were trespassers. This result could follow only if (1) Thomas Piper had acquired from the owner an irrevocable grant of the right to lead the water of the spring to his premises in the manner described in the testimony; or (2) the public or the borough acting for it were estopped to deny Piper’s right, or (3) his successors had acquired the right by adverse user. It is not seriously claimed, and after a careful perusal of the testimony we do not think it could be safely asserted that there is any proof by direct evidence of an irrevocable grant by Jehu Jack-man to Thomas Piper of the right to lead the water of the spring to his premises. There is evidence that he claimed to have received such a grant, and that this claim was accompanied by such use of the water as might raise the presumption of a grant, but that is as far as the testimony goes in that direction. Therefore his right and that of his successors in title arises, if at all, from adverse user. But whether they, either exclusively or in common with others, had acquired the right in that manner, as against the owner, was a question involving matters of fact which were necessarily submitted to the jury. The facts testified to by Mr. Shutterly had a very important bearing on that question, but they are not all the facts pertinent to the question, and we cannot say that they were conclusive.

It is suggested in the point that the persons named recognized Piper’s right. But assuming this to be true, how would that estop the borough from enforcing its rights under its grant of February, 1894, from J. B. Crothers, the owner of the spring? This has not been made clear to us. So long as those persons and their successors took the surplus water under the agreement referred to, of course they could not acquire title by adverse user as against Thomas Piper. But they could terminate their use of the water under the agreement at any time. No such relation was established between them and Piper, and no such privity between them and the borough is shown as would preclude the latter from acquiring from the owner of the spring such rights as were still vested in him and asserting them against the plaintiff. In other words, — to adopt the language of the defendants’ first point, — the borough having purchased from Crothers the use of the spring, it was necessary for the plaintiff, in order to establish a right to the water of the spring as against the borough, to show that the plaintiff or its predecessors in title had acquired such right as against Crothers. In no view of the pleadings and the evidence would the court have been justified in affirming the plaintiff’s ninth point.

Complaint is made not only of the refusal of the point but of the reason assigned by the learned judge therefor. Notwithstanding the very earnest argument of the appellant’s counsel we are of the opinion that the court committed no error in saying: “the defendants do not claim title by adverse possession, they justify under the grant from (brothers of date February 17, 1894, and the fact that the plaintiff had no legal title to the use of the water, but only a revocable license.” Referring to the record of the testimony we find that in opening their case in chief the defendants offered the grant of 1894 as the basis upon which they, as agents of the borough, acted. In their bill of 'particulars they averred (1) that the plaintiff and its predecessor in title never had the right to the water of the spring asserted in the statement of claim: (2) that certain citizens ' originally obtained permission from the owner of the spring to lay a pipe to conduct the water to a public fountain in the town, and in consideration of being permitted to cross Thomas Piper’s land they permitted him to construct a cut-off so as to draw water from the pipe, which right to use the water was to continue only so long as the said pipe should be maintained; and (8) that in order to acquire the permanent right to the use of the water of the spring which had theretofore been enjoyed by license merely, the borough in 1894 purchased the same from the owner by the agreement in question. This falls very far short of averring a prescriptive right acquired by adverse enjoyment. On the contrary, a permissive use is alleged in terms which seem to negative the existence of a right in any one, prior to the agreement of 1894, to take the water of the spring against the consent of the owner. The issue thus raised was not simply whether the plaintiff or the borough had the superior prescriptive right — assuming that it must be in one or the other — but whether the user by the plaintiff and its predecessor in title was adverse, and had ripened into a prescriptive right prior to the date of the agreement. The facts alleged had a direct bearing on that question, and we cannot see that the defendants have shifted their ground in now arguing that this was the theory upon which they were alleged. It is certainly the theory of their first point, the affirmance of which has not been assigned for error.

The remaining portions of the answers, taken in connection 'with the general charge and the answers to the other points, could not possibly be construed by the jury as an instruction that the plaintiff had no legal title to the use. It is simply a statement of what the defendants asserted in that regard as part of their defense or justification, and it could not have been understood otherwise. The first assignment is overruled.

II. Proof having been made of the service of a subpoena on James Ward and of his inability to be present in court by reason of illness, it was not error to permit his testimony taken on a former trial of the case to be read: Thornton v. Britton, 144 Pa. 126; Com. Title Co. v. Gray, 150 Pa. 255; Perrin v. Wells, 155 Pa. 299. Therefore the second assignment of error could not be sustained, and, as we understood the appellant’s counsel, it was abandoned on the argument.

III. Margaret Moore, a witness for the plaintiff, testified, in substance, that she had heard Thomas Piper say that, “ he got the right of way, got the privilege,” from Jehu Jackman to fetch the water down to his milk house for his own use. She further explained that she understood the privilege or right of way thus acquired to be irrevocable — a privilege that nobody could take away from him. She further illustrated her meaning of the terms used by comparing the right to the right of way acquired by a railroad company. On a former trial of the case she testified simply that she had heard Piper say that “hé got the water privilege from Col. Jackman to pipe it down to his property.” The defendant put in evidence this extract from her testimony for the purpose of contradiction. The plaintiff in rebuttal proposed to ask her the effect of, and the sense in which she understood, the language of Piper, and the’sense in which she used the word “ privilege ” in her former testimony. This was objected to and the rejection of the offer is the subject of the third assignment of error. Little more is,needed to justify the ruling of the court than a bare statement óf the question. The offer was not to prove that her answers oh'the former trial were not correctly reported, nor to prove that'she did not understand the questions, nor to prove that she was not given full opportunity to answer or to explain, nor to prove that there was anything in the context to qualify or explain the extract from her testimony which the defendants had offered. It is difficult to see then how the rejected offer could have been rebuttal of anything. It was in effect but a repetition of what she had testified to on the present trial as to the meaning which she understood Piper to convey, and as she was heard fully upon that subject hr her testimony in chief, the plaintiff has no just cause of complaint.

IV. The question as to the notice posted at the watering trough was not of the highest importance, but even if it were, the rejection of the offer to prove in rebuttal the contents of the notice was perfectly proper. The plaintiff had given in its case in chief the substance of the notice. The testimony of the witness probably might have been objected to upon the ground that it was hearsay; but it was not objected to and was not contradicted. Indeed, the defendants called a witness (Thomas T. Lilley) whose testimony as to the contents of the notice was substantially the same as that adduced by the plaintiff. There was' therefore no dispute as to what the notice was and any further testimony as to its contents would have been merely cpipulative and in rebuttal of nothing that the defendants had shown, unless it was different from that which had been given already. This, however, was not alleged in the offer. So far as the testimony of R. L. Leadbeter as to the purpose or object of the borough in putting up the notice would be rebutted by evidence of its contents the plaintiff had the benefit of the hncontradicted evidence heretofore referred to. The fourth assignment is therefore overruled.

' V. The fifth assignment of error is to the refusal of the court to permit the plaintiff to prove the substance of a conversation between John Parshall, director or superintendent of the plaintiff association, and George S. Hornbake, burgess of the borough of Coal Centre, under which the defendants were acting, in which Hornbake is alleged to have stated that their intention 'was only to lay the pipe in the spring on a level Avith the pipe which carried the water to the plaintiff’s property and that there was'no dispute of the latter’s right to use the water from the spring in common with the borough. It is to be observed that this Avas about the time that the neAV pipe line Avas being laid by the borough, but it is not asserted in the offer that the admission was made in the prosecution of the work in Avhich the alleged trespass occurred. If the offered evidence Avas competent at all, it was because the burgess, as such, had authority to act, and hence to speak, for the borough in the matter. But the rights of the borough Avere defined by its contract, and the powers of the burgess were such only as the statute gave him. As burgess, Mr. Hornbake had no authority to surrender, or grant away, the borough’s rights, and hence no authority to prejudice them by loose declarations not made in connection with any act complained of in the suit, or occurring in the performance of an official duty. “ The acts of the officers of municipal corporations in the line of their official duty, and within the scope of their authority are binding upon the body they represent; and declarations and admissions accompanying such acts as part of the res gestae calculated to explain and unfold their character, and not narratives of past transactions are competent evidence against the corporation. To render such declarations and admissions evidence, they must accompany acts, which acts must be of a nature to bind the corporation : ” 1 Dill. Mun. Corp. par. 237, note, p. 322, and cases there cited. According to this clear and accurate statement of the law, the evidence would not have been admissible for the purpose for which it was offered in a suit against the borough; a fortiori it was not admissible against these defendants.

VI. The excerpt from the charge specified in the sixth assignment is complained of because it seems to imply that in order to acquire a prescriptive right by adverse enjoyment it is necessary to show express notice to, and acquiescence of the owner. Standing by itself it might be subject to that criticism. It is to be observed, however, that there was no dispute as to the notoriety of the user or as to the knowledge of the owner. Indeed the defendant’s contention was that it was permissive, by virtue of a revocable license from the owner. Thus his knowledge was a conceded fact, and it is fair to assume that the jury did not find against the plaintiff on the ground that the owner was ignorant of the user. In another portion of his charge the learned judge instructed the jury in this plain language: “Nor is there any dispute about the use of the water being a visible and notorious use. It was used in a way that could be fairly described as visible and notorious; it was not a secret use so that the owner of the spring would have no way of knowing that the water was being used, but it was used in such a way as fairly meets the requirements of the law; that is, it was visible and notorious.” If there was any seeming error in the definition of adverse possession it was rendered harmless by this positive instruction. Furthermore, in affirming the plaintiff’s third and eighth points, especially the latter, the jury were clearly and accurately instructed that the use of the water by the plaintiff and its predecessors in title when they saw fit, without asking the leave of the owner of the spring and without objection by said owner constituted an adverse use. “ It is always unsafe, as well as unfair to the trial judge, to select a single sentence from the body of his charge, sever it from the context and undertake to construe it by itself, without regard to what he may have said in the same connection, or in other portions of his charge: ” Sterrett, C. J., in Irvin v. Kutruff, 152 Pa. 609, 612; L. V. R. R. Co. v. Brandtmaier, 113 Pa. 610, 619; Rogers v. Davidson, 142 Pa. 436; Smith v. Meldren, 107 Pa. 348; Malone v. R. R., 157 Pa. 430, 441, 442. Read with the context and the answers to the points, the instruction complained of could not have misled the jury.

We have purposely confined our discussion of the case to the questions which are fairly raised by the assignments of error. As none of them can be sustained the judgment is affirmed.