33 Pa. Super. 563 | Pa. Super. Ct. | 1907
Opinion by
An action of trespass was brought before a magistrate for cutting ice on a body of water known as Lily Lake, situated in Lackawanna county. The defendant filed his affidavit alleging that the title to the land would come in question, and the case was removed to the court of common pleas. At the conclusion of the trial counsel for both parties asked for binding instructions, and after hearing argument the court instructed the jury to return a verdict in favor of the plaintiff and to
While the second assignment of error might properly be disregarded as being in direct violation of rule XVI of this court, under the special circumstances of the case we treat it as a valid one. Thomas W. Clymer was the undisputed owner of an undivided nine-tenths of the land claimed by the plaintiffs, and by his will he devised to his brother, William Bingham Clymer, all his “wildlands.” When this will was offered in evidence it was received “ subject to further proof as to identification of the land in question with the land devised by the will.” This proof was supplied through the definite location of, and title to, the original warrants, with undisputed evidence that this lake was within their lines’, coupled with a chain of title which at the time of trial vested in plaintiff. This was so clearly established that the appellant relied on another and entirely different proposition,' as is shown by the opening inquiry of this argument: “ The controlling question in this case is, has the plaintiff shown possession of the land in question in the case ? ”
The third assignment of error is as clearly in violation of the same rule of this court. To prove that William Bingham Clymer died intestate, and that the plaintiff’s grantors were his sole legal heirs, the depositions of Mrs. Mercur and Mrs. Little were taken. Counsel for the defendant was present at the taking of depositions and the witnesses were fully cross-examined as to their relationship and means of knowledge of the facts to which they testified. William Bingham Clymer was their great-uncle, and they had personal knowledge through years of association as children, which was continued through correspondence with all the members of his family and undisputed family records. William Bingham Clymer was married in 1852 and died in 1873. In 1878, Mrs. Clymer with two of her children were drowned through the sinking of the Steamship Pomerania in the British Channel, and two of the children, Mary and Rose, alone survived that disaster. They have continuously remained abroad, and have avowed their intention of never returning to the United States. They are now married, one residing in France and the other in Italy, with their respective families, and are the sole surviving heirs of William Bing
The action was brought for the purpose of testing the plaintiff’s title to this inland body of water called Lily Lake or Wall Pond, containing eightjr-four acres, more or less. The plaintiff by voluminous and somewhat complicated assurances clearly established her paper title to the satisfaction of the court to an undivided nine-tenths of the land, in part covered by the water of Lily Lake or Wall Pond. In addition to this it was clearly shown that it ivas wild, unimproved and unseated land, that taxes had been paid upon it by the present plaintiff and her predecessors in title, that notices of protest against trespassers had been maintained, and that the location was definitely ascertained by a surveyor, who determined the original location of the Moses Starr and Samuel Giffen. warrants of which these eighty-four acres of land are a part: Wilkinson v. Connell, 158 Pa. 126 ; Irwin v. Patchen, 164 Pa. 51. Another element of controversy in the case, and about which the appellant makes an earnest contention, is the effect to be given to the deédby which the defendant holds title to his land adjoining the lake. The description in his deed, so far as it relates to that part of the land of which he claims to be a shore owner, is as follows : “ Thence south 44 degrees west 79 perches and t50 of a perch to a corner in the edge of Wall Pond; thence along the edge of said pond 57 degrees east 31 perches to a corner in the edge of said pond ; thence south 18 perches to a hemlock tree, .... containing 50 acres, strict measure, be the same more or less, being part of a larger tract under the warrantee name of Moses Starr.” By the testimony of George Stevenson, a surveyor, it was proven that in a conversation he had with the defendant, the location of the above quoted lines was not disputed, viz.: “I said to him, ‘You know that I ran
There is no merit in his contention as urged by his counsel on the trial below, and in this court, that his conveyance carried his title to the center of the pond. In the description of his grant there is nothing doubtfully set down, and it comprehends to a certainty the thing granted by express and unmistakable words. There is not any conflict between natural objects and monuments on the ground on the one hand, and courses, distances and quantity on the other. The description in the deed is clearly, certainly and definitely applied to the ground, and there is no controversy as to the exact location of any course mentioned in his deed. For all purposes of title, and of rights flowing therefrom, it was perfectly immaterial to the defendant what was south and west of his land as defined by the lines “from a corner in the edge of Wall Pond; thence along the edge of said pond south 57 degrees east 31 perches to a corner in the edge of said pond; thence south 18 perches to a hemlock tree.” Had this boundary line been a stone wall six feet in width at the bottom, the grant would have extended to the center of it, as was said in Warner v. Southworth, 6 Conn. Reports, 471, but it could go no further than the center of the boundary line. The line as described, not the pond, was his boundary, and beyond it he had no right to go, whether to take ice, mine coal, or cut timber, or whether it was arable land, or a lake. In crossing this line he became a trespasser. Even in cases where a river is mentioned as a boundary, where the language used clearly shows such to be the intention of the grantor, the bank, side, margin or shore become themselves
The defendant in this case is not a riparian owner in the sense of owning land bounding upon a water course, which without further words of definition pass title to the thread or central line of the stream. This small body of water is without curreht or thread, and both the plaintiff’s title and the defendant’s are fixed by clearly defined lines in regard to the location of which there is no dispute. The authorities in Pennsylvania are in accord with the ones above cited. Smoulter v. Boyd, 209 Pa. 146 would of itself be conclusive against the defendant’s contention. He is entitled to all the land inclosed by the metes and bounds of his deed: to this acreage and no more. His contention that the defendant had a right by prescription to take ice from this body of water is not supported by any evidence. It is true that ice had been taken from the pond at irregular intervals, without the direct permission of the owner, by the class of persons called bjr the appellant, shore owners, but the right to do so was never recognized by the holder of this title, and as soon as it was asserted as a right, it was resisted by the posting of notices and requiring persons to make a formal application, and pay for the ice taken. Possession of the land covered by the water was taken and asserted by the plaintiff and her predecessors in title, so far as possession could be taken of an unin closed, nonnavigable pond or small lake, and the defendant not having any right to cut ice as a riparian owner, and recognizing that he had no right by prescription, by his making a formal application for permission to take ice the year previous, and paying for the ice so taken, his assertion of title by prescription fell with the balance of his defense.
The assignments of error are not sustained, and the judgment is affirmed at the costs of the appellant.