64 Pa. Super. 243 | Pa. Super. Ct. | 1916
This was an action of trespass quare clausum fregit for cutting down and carrying away a number of trees. The- close was described in the plaintiff’s statement of claim by metes and bounds, and was further identified as being the southern part of a larger tract of la,nd surveyed under a warrant granted by the Commonwealth to James McMullen in 1794. The plea was not guilty. This appeal is from judgment on verdict in the defendant’s favor.
Possession has by law a qualified property attached to it, which is valid until a better right be shown; and one who is in actual possession of land may, therefore, maintain trespass qu. cl. freg. against a mere intruder. It is argued that the instructions to the jury quoted in the first assignment of error were in conflict with this principle, but when they are considered in the light of the evidence it will be seen that they were not. .The locus in quo' was timber land. The plaintiff introduced no specific evidence as to his actual possession, but relied, apparently, on the constructive possession flowing from
The plaintiff showed by unimpeached documentary evidence a clear and complete title to the sohthern part of the McMullen tract, and introduced evidence which, if believed, established the western boundary line of the tract as being a line running N. 27° E. from the Weaver corner—this being the common corner of the McMullen and the Jacob Weaver tracts. The location of the line upon the ground, depending as it largely did upon the conflicting testimony of surveyors, was a question for the jury under appropriate instructions by the court as to the rules of law by which they should be guided: therefore the plaintiff’s point for binding direction was properly refused. But in view of his clear title the plaintiff was entitled to have the jury instructed that if they found the line to be as shown by his evidence the defendant was a trespasser in cutting timber on the portion of the McMullen tract described in the statement of claim which lies east of that line, and was liable in damages for the timber so cut. Explicit instructions to that effect would have relieved the case of much confusion and would have brought the jury’s attention directly and pointedly to the controlling question it was their province to decide, namely, the true location on the ground of the western boundary line of the McMullen tract. Such instructions were prayed in the plaintiff’s points. The only reason assigned by the court for refusing the points and for charging the jury that the plaintiff could recover no more than nominal damages was that there was “no evidence’to show when this timber was cut, and it.cannot be left to the jury to guess when it was cut.” We cannot take the same view of the evidence, and it seems needless to say that nothing that the plaintiff averred in the estrepement affidavit as to the cutting after June 29, 1912, estopped him from re
We have stated that the plaintiff had a clear title to the land up to the western boundary line of the McMullen tract as originally surveyed and returned under the warrant issued in 1794. In making that statement the evidence relating to the settlement in 1883 of the action of trespass brought in 1874 by Samuel Bolinger, the plaintiff’s predecessor, against Abraham Bolinger, the defendant’s predecessor, has not been overlooked. In considering the third, seventh and eighth assignments of error this evidence should be specifically referred to. The action was discontinued pursuant to a settlement in writing whereby it was agreed that Abraham Bolinger pay to Samuel Bolinger $75 in full of damages to date, and was “to have the privilege of moving the fence on old line.” The court instructed the jury to take this evi- ■ dence into consideration in determining the location of
The fifteenth assignment of error relates to the admission in evidence of the record of an action of trespass qu. cl. freg. brought in 1880 by Samuel Bolinger, the
The plaintiff offered to prove that in 1871 John C. Bolinger and Samuel Bolinger, then being owners as tenants in common of the McMullen tract, made an amicable partition of the tract whereby it was divided into four purparts, the middle purparts being given to John C. Bolinger and the northern and southern to Samuel, and that after this partition each party entered into possession of his particular part. The offer as more fully quoted in the sixteenth assignment of error alleges the essentials of an executed parol partition. One objection urged against it was that a parol partition of
Proof of the parol partition was further objected to on the ground that in 1881 John C. Bolinger made a deed to Samuel Bolinger for the southern part of the McMullen tract, that being the part that had been awarded to him in the alleged parol partition, but clearly the giving and acceptance of this deed did not preclude Samuel Bolinger or his successor in title from showing that his title in severalty to that part of the tract had vested ten years before. Such proof was not in contradiction of the deed. It is said, in view of this deed proof of the parol partition was unnecessary in making out the plaintiff’s title, and therefore no harm was done by its rejection. It may not have been essential to the making out qf the plaintiff’s case,—the deed was sufficient for that purpose —but it was highly important in view of the admission of the testimony adduced by the defendant (sixteenth assignment) that in 1880 John C. Bolinger admitted the
There is some merit in appellants criticism of that portion of the charge quoted in the second assignment of error. It was not strictly accurate to say that the defendant’s surveyor started at the Weaver corner in locating the line. This was a misconception of his testimony as we understand it. But, it is to be observed, the learned judge said nothing to bind the jury to his view of the testimony, and if counsel had called his attention to the inaccuracy doubtless he would have corrected it and made it harmless. Under the circumstances it does not alone constitute reversible error. See Commonwealth v. Razmus, 210 Pa. 609; Shade v. Llewellyn, 250 Pa. 456, and cases there cited.
Viewing as a whole the offer contained in the seventeenth assignment of error, it is not apparent that sufficient was alleged to entitle the plaintiff to.introduce the map made by S. D. Caldwell in evidence, it not being alleged that he was dead or that his testimony could not be obtained.
The judgment is reversed and a venire facias de novo is awarded.