11 Pa. Super. 463 | Pa. Super. Ct. | 1899
Opinion by
The plaintiff and the defendants Weekey, Dade and Noble, held adjoining lots, separated by a fence, extending from Harvey street to Lafayette street. The land in controversy is a strip of the lot held by the plaintiff, about eleven inches wide, adjoining the land held by the defendants. While the plaintiff was in possession of this, the three defendants named entered upon it, without the plaintiff’s consent, removed its retaining walls, on both streets, placed a stone post on the Harvey street front, set the fence back on the lot held by the plaintiff, the width of the strip in dispute, for about ninety feet from the Lafayette street front, and took possession of the portion thus cut off. They afterward conveyed the lot held by them, with the strip in dispute; a part, fronting on Harvey street, to the defendants Freeh and Newhall, and the residue, fronting on Lafayette street, to the defendant Durnell. The portion in depth convejmd to each does not appear.
The questions raised by the pleadings and evidence are (1) whether there is adequate proof of the matters alleged by the plaintiff as the ground of the relief prayed for; (2) whether a court of equity may require the defendants to restore the property in dispute to its condition prior to the acts complained of, and withdraw from the possession which they have taken; '(3) whether such further invasion of the plaintiff’s right is threatened as calls for the interposition of a court of equity for her protection.
. The leading matter of fact in the case is the plaintiff’s title
The legal effect of the possession averred by the plaintiff, in creating a positive title, was lucidly discussed and accurately stated by the learned president of this court, when this case was before us on a demurrer to the bill, 4 Pa. Superior Ct. 69, and nothing can profitably be added to what was there said. If the evidence is sufficient to establish this possession, the plaintiff has shown title, as against the defendant, for all the purposes of the case. We have, then, to consider the question of its sufficiency.
One important purpose — and sometimes the only purpose— of a bill in equity is the discovery of facts lying within the defendant’s knowledge. It is primarily an appeal to the defendant’s conscience, to answer as to his knowledge respecting the matters, averred in the bill, essential to the maintenance of the right alleged by the plaintiff. The defendant may, in turn, by a cross-bill, appeal to the plaintiff’s conscience for a disclosure of facts known to him, essential to the defense. For the purposes of the pending action, or on a separate bill for discovery in aid of an action at law, “ either party might claim a
To have this probative effect, however, the answer must be
In the present case, the defendants are strangers to the plaintiff’s title, and to the matters alleged in its support. These involve no act or participation, and no knowledge, by the defendants, or any of them, and the bill neither asserts nor implies knowledge on their part to which the plamtiff could appeal for a discovery of facts. It does not, indeed, appear that any of
The question as to the apprehended ejectment of the plaintiff from that portion of the strip in dispute still held by her is free from difficulty. The answer admits that possession of part of this strip was taken by the defendants Weekey, Dade and Noble, and is retained by the other defendants. The intention to take possession of the residue, alleged in the bill, is denied in the answer. The - answer, however, appears to have been sworn to by the defendant Weekey alone. Hence it cannot avail his codefendants, except as a traverse, since it is not their answer under oath, and he cannot answer of his own knowledge respecting their intention. The plaintiff testifies that the threat indicating the intent was made by the defendant Dade. He neither answered under oath nor testified as a witness in denial of this; nor did any of the defendants testify on the subject. Apart, however, from tins failure to answer or testify, the intention of all the defendants may well be inferred from their conduct in the premises. Without color of title, so far as appears, three of them ousted the plaintiff from nearly two fifths of the strip in controversy, on the Lafayette side front, and marked their possession of the Harvey street front by the erection of a stone post. They next conveyed to their codefendants. While the latter may not be personally liable for the wrongful acts of their predecessors in possession, they
The case exhibits a violation by all the defendants of the plaintiff’s right as to part of the land involved, through a trespass, an ouster, and a nuisance, with a like violation of her right as to the residue clearly impending. The conclusions of the trial judge as to the remedy are tersely stated, and rest on well settled principles. Though the plaintiff might, at law, recover damages from the original trespassers, and possession from their successors, and might pursue the like remedies upon a further invasion of her rights, it does not follow that she is without remedy in equity. “ Jurisdiction in equity depends not so much on the want of a common-law remedy as upon its inadequacy, and its exercise is a matter which often rests in the discretion of the court; in other words, the court may take upon itself to say whether the common-law remedy is, under all the circumstances, and in view of the conduct of the parties, sufficient for the purposes of complete justice, or whether the intervention' of chancery may not for that purpose be required and beneficially applied: ” Bispham’s Eq. sec. 484; Bierbower’s Appeal, 107 Pa. 14; Harper’s Appeal, 109 Pa. 9; Electric Company’s Appeal, 114 Pa. 574; Vollmer’s Appeal, 61 Pa. 118; Kirkpatrick v. McDonald, 11 Pa. 387. “ When once a court of equity takes cognizance of a litigation, it will dispose of every subject embraced in the circle of contest, whether the question be of remedy or of distinct yet connected topics of dispute. If the
Nothing in the assignment of error calls for further discussion.
While we affirm, in substance, the findings and conclusions of the trial judge, the decree should be amended, since, as to the measure of liability, it does not distinguish between the original trespassers and their codefendants. The latter had no part in the acts committed by the former, but merely succeeded them in possession; hence the decree, as to them, should be framed with reference to the situation upon and after their entry. The decree is accordingly vacated, and, as an amended decree, it is ordered, adjudged and decreed as follows, viz :
1. That the defendants withdraw from such possession as they jointly or severally have taken of the land described in ' the bill as'belonging to the plaintiff, until their right of possession «ball have been established by due course of law.
3. That having so restored the said fences and walls, the defendants be enjoined from interfering with or altering the visible division line between the lands held by them and the lands held by the plaintiff until á right to alter the same shall have been established by due course- of law.
4. That the defendants pay the costs of the action and of this appeal.