24 Pa. Super. 35 | Pa. Super. Ct. | 1903
Opinion bt
A comparison of the written evidence of title in this case with the same papers in Medara v. Du Bois, 187 Pa. 431, leaves us in no doubt that the division or party wall, so-called, separating the two brick houses, forms the dividing line between the plaintiff’s and defendant’s lots so far as this wall extends, to wit: between the houses. The location of this party wall is not involved in this suit except in so far as it affects the line between the parties from the rear end of said wall to the rear of the lots. It is unnecessary to decide the point, but it may be that a projection of the line marked by this wall will fix the
Having reached the conclusion that the wall between the two houses fixes the true line between the two lots, so far as it extends, the question remains as to the line from the rear end of this wall to the rear of the lots. Was the learned judge below right in holding as a matter of law that a straight line must be projected to the rear end of the lots, from the end of the wall ? If the solution of this question depended solely on the written title papers in evidence and this wall there can be little if any question of the correctness of his ruling. But was there not sufficient evidence of a dispute -between Quinn and Reardon, as to this portion of the line, and of their agreement that the line should be as called for in their deeds, and of the erection of a fence on that line by Quinn, and the maintaining of it for many years prior to the plaintiff’s acquiring her title, under him, to require the submission of this question to the jury ? In other words was the evidence not sufficient to warrant a jury in finding that the fence built in the spring of 1885, by Quinn, on the line as called for by the deeds, was the establishment of a consentable line from the rear end of the party wall to tbe rear of the lots?- If the--evidence was sufficient for that purpose then the learned judge erred in giving
Upon this question we have the deeds, each calling for a lot twenty-five feet wide fronting on Indian Queen Lane, and the side lines of these lots were described at right angles with said lane. In 1883 Quinn claimed that his lot was several inches wider than Reardon’s and erected a fence where he claimed the line was, which was a projection of the party wall line to the rear of the lots. This narrowed Reardon’s lot several inches and correspondingly widened Quinn’s. Reardon disputed with Quinn in regard to the location of this fence, and claimed that it was not upon the line. A surveyor was called in, who ran a line in accordance Avith the deeds. We then have Quinn promising that in the spring he would move the fence to this line, which he voluntarily did in the spring of 1885. Reardon Avas satisfied and the fence was thereafter maintained on said line for many years, and it Avas there when the plaintiff acquired her title, under Quinn, and was notice to her of the location of the line between Quinn and Reardon from the rear end of the party wall to the rear end of the lots. We think this evidence should have gone to the jury under proper instructions, and if they had found in favor of the line marked by this fence, as a consentable line, their verdict should have been for the defendant. This ejectment, as we understand it, is for a narrow strip of land about nine and a half inches wide at one end and running to a point or nearly so at the other end, extending from near the rear end of the party wall to the rear line of the lots. It is contended that the evidence was not sufficient to establish a consentable line. The learned judge below took this view of it and refused to submit it to the jury, and gave a binding instruction in favor of the plaintiff, which in effect gave her the land on her side of a line established by projecting the party wall to the rear line of the lots. It is true the evidence literally read and narrowly construed, against the defendant in possession, may seem to fall short of clearly, by its very words and the writings, proving a consentable line. But we think when all of the evidence bearing on this question, written and oral, with the legitimate inferences which a jury could have drawn from it is considered, it is sufficient to Avarrant a finding that Quinn and Reardon
This adjustment only gave Reardon twenty-five feet wide from the rear end of the wall to the rear line of the lots and it gave Quinn the benefit of the narrow strip of land for the entire length of the wall, and, practically so far as appears, to the front line.
In our opinion, the evidence, with such inferences as the jury might have fairly drawn from it, brings the case within the principle of Perkins v. Gay, 3 S. & R. 327. The doctrine of that case, as indicated in the opinion of Gibson, J., in regard to consentable lines, has become the established law of this state and it cannot now be successfully questioned. See also Hagey v. Detweiler, 35 Pa. 409, and Kellum & Cole v. Smith, 65 Pa. 86.
It is unnecessary to consider the assignments of error separately for the reason that the learned judge refused to submit the evidence to the jury and directed a verdict in favor of the plaintiff. In this we think he erred, for the .reasons stated in this opinion. The assignments of error, in so far as they allege