Busch v. Calhoun, Appeal, No. 143

Appeal, No. 143 | Pa. Super. Ct. | Jul 26, 1900

Opinion by

Orlady, J.,

In 1873, John Cochran owned a tract of land fronting on the east side of Winona avenue, between Welcome avenue on the north and a turnpike road on the south, which he divided, beginning at Welcome avenue, into fifty-foot front lots and made the last lot at the turnpike road seventy-three feet front. From 1873 to 1879 these lots were sold by descriptive distances from either end, and an error in measurement of the frontage, left a strip of ground fifteen feet wide between lots Nos. 405 and 406. The plaintiff owned lot No. 405, and while attempting to locate the lot on the ground she discovered the error, and in 1896 secured a deed from John Cochran for the fifteen-foot strip.

While the title to this strip was yet in Cochran the defendant attempted to purchase it, but owing to certain liens of record against Cochran he failed to secure a good title thereto, and under an arrangement with one of Cochran’s lien creditors lie went into possession of the lot without any title to it and erected a building thereon for use as a meat market. When the plaintiff had perfected her title to the strip she notified the defendant to vacate the premises; this he did soon after and removed the buildings which he had erected. He had occupied the lot about seven years, about one year of which time was subsequent to the perfection of the plaintiff’s title to the strip. This action of trespass was brought to recover for the use and occupation of the premises. The statement alleged that the defendant “ with force and arms, etc., broke and entered the close of the plaintiff” and “with force and arms retained possession of the same.” On the trial of the cause it appeared from the plaintiff’s evidence that she had never been in actual possession of the lot until it was surrendered by the defendant, but that she was in actual possession of the lot when the suit was brought. The court affirmed, a point submitted by the defendant, as follows: “ It being the uncontradicted evidence of the plaintiff, that she never had actual possession of the premises, at or before the time of the alleged trespass, the plaintiff is not entitled to recover and the jury are instructed to render their verdict for the defendant,” and said that “ when there has never been actual possession in the plaintiff during all the time of the defendant’s possession, .... I hold that the action of trespass cannot be maintained. My attention is called to the fact that at the time the action was brought the plaintiff was in actual possession. The defendant having surrendered it, I am of the opinion that this makes no difference, as the things complained of were while the defendant was in full possession.” A verdict for the defendant was accordingly directed by the court.

Whatever of doubt may have existed in regard to the form of action in such a case, it was relieved by the procedure Act of May 25, 1887, P. L. 271. The 2d section of that act provides that “so far as relates to procedure, the distinctions heretofore existing between actions ex delicto be abolished, and that all damages, heretofore recoverable in trespass, trover or trespass on the case, shall hereafter be sued for and recovered in one form of action, to be called an action of trespass.”

The manifest purpose of this enactment was to abolish the technical distinctions between the common-law actions, and it should be liberally interpreted: Jones v. Gordon, 124 Pa. 263" court="Pa." date_filed="1889-02-18" href="https://app.midpage.ai/document/jones-v-gordon-6239182?utm_source=webapp" opinion_id="6239182">124 Pa. 263. However, as to all matters of substance, completeness, accuracy and precision are as necessary now to a statement as they were before to a declaration in the settled and time honored forms : Fritz v. Hathaway, 135 Pa. 274" court="Pa." date_filed="1890-05-26" href="https://app.midpage.ai/document/fritz-v-hathaway-6239957?utm_source=webapp" opinion_id="6239957">135 Pa. 274; Murphy v. Taylor, 173 Pa. 317" court="Pa." date_filed="1896-01-20" href="https://app.midpage.ai/document/murphy-v-taylor-6243467?utm_source=webapp" opinion_id="6243467">173 Pa. 317. It was intended to dispense with formality, but to insist on matters of substance indispensable to an intelligent and just judgment between the parties: Winkleblake v. VanDyke, 161 Pa. 5" court="Pa." date_filed="1894-04-02" href="https://app.midpage.ai/document/winkleblake-v-dyke-6242149?utm_source=webapp" opinion_id="6242149">161 Pa. 5. In the case before us, the verdict was directed solely for the reason that the plaintiff could not recover in the form of action of trespass unless she had shown that she was in actual possession of the premises upon which the disturbance of possession was alleged to have occurred. On this question the court below erred in the reason given, but not in its judgment, in view of the cause of action set out in the pleadings. The case of Collins v. Beatty, 148 Pa. 65" court="Pa." date_filed="1892-03-28" href="https://app.midpage.ai/document/collins-v-beatty-6240640?utm_source=webapp" opinion_id="6240640">148 Pa. 65, is sufficient authority for the action of the court and the judgment is affirmed.