197 A. 780 | Pa. Super. Ct. | 1937
Argued October 25, 1937. The opinion of President Judge LEWIS, as printed in the Reporter's statement, furnishes sufficient warrant for the lower court's order making absolute the rule on the respondent appellant to bring her action of ejectment.
As appellant contends that the cases cited by the court below do not sustain its action, we shall supplement Judge LEWIS'S opinion by some additional cases which support it.
Appellant takes the position that if the respondent in her answer denies that the petitioner is in possession of the strip of ground in dispute and avers that she — *274 the respondent — is herself in possession of it, the rule must be discharged. Notwithstanding favorable dicta in some works on Practice, the Supreme Court cases construing the Act of March 8, 1889, P.L. 10, and its amendments of May 25, 1893, P.L. 131, and April 16, 1903, P.L. 212, do not support it. In order not to confuse the proceedings under the Act of 1889, as amended, with the rule for an issue to quiet title to land under the Act of June 10, 1893, P.L. 415, we shall restrict our discussion to the cases involving the Act of March 8, 1889, supra, and its amendments of May 25, 1893 and April 16, 1903.
Chief Justice MITCHELL in Fearl v. Johnstown,
In Spangler v. Trogler,
In Foster's Petition,
In Welsh v. Clough,
In Hemphill v. Ralston,
These cases refute the contention of the appellant that a mere denial by her of petitioner's possession of the strip of land in dispute and her averment of her own possession of it deprive the court of jurisdiction of the proceeding and require the discharge of the rule. They hold, on the contrary, that where, as here, the *277 testimony taken in support of the answer, fails to show any substance in the claim of the respondent to have been in possession of the disputed strip at the filing of the petition, it is the duty of the court to find whether the petitioner was in possession, and if so, to make the rule absolute.
We agree with the court below that the mere laying of a sewer or drain under the surface of the ground is not possession of theland within the contemplation of the statute. If done by one in occupancy of the surface of the land, it is a use consistent with ownership and possession; but, of itself, it constitutes rather an easement in the land than possession of it. If of a character of which the servient tenement has, or should have, notice, it may ripen into a valid easement by prescription, but it does not constitute possession of the land itself.
The order is affirmed.