Harris v. Pittsburg & Lake Erie Railway Co.

11 Pa. Super. 6 | Pa. Super. Ct. | 1899

Opinion by

Orlady, J.,

In an action of ejectment the plaintiff recovered a verdict, with -six cents damages and costs, for land described in the writ as follows : “ A tract of land in Rostraver Township in the said county, containing two acres or thereabouts; bounded by lands of D. Castner, Miller & Reeves, and the Monongahela river,” and the principal error urged by the appellant is that “ the description of the property mentioned in the writ is too vague and indescriptive to admit of a recovery for the plaintiff.”

It was held in O’Keson v. Silverthorn, 7 W. & S. 246, that “ In ejectment the verdict must be certain as to the premises recovered, or at least capable of being rendered certain, by a reference to something of a permanent and public nature, by •which, the title may be ascertained, otherwise its termination would be but the beginning of a new litigation.”

In Hagey v. Detweiler, 35 Pa. 409, the verdict of the jury was in the following form: “We find for the plaintiff so much of the land claimed in the writ as lies north of a line beginning at a point which is thirteen feet south from the middle of the south wall of the late old stone shed, thence by a straight line northeasterly direction to post, the southeast Corner of plaintiff’s lot.” Of this verdict the Supreme Court said: “Whenever the verdict is sufficiently certain to enable a court to give judgment and the sheriff to deliver possession, it will not be disturbed ; and this certainty must be in the verdict itself, or by a reference to something of a permanent and public nature. The verdict rendered, when taken in connection with the description in the writ, would be sufficient to indicate the ground recovered, if the starting point assumed in the verdict could be fixed with reasonable certainty. The vice of the verdict is radical and incurable. The practice of this court favors verdicts, but does not tolerate such essential uncertainty. It comes short of the object of all verdicts, which is to make an end of controversy,” and the judgment was reversed.

These cases were approved and distinguished in Smith v. Brotherline, 62 Pa. 461, and a verdict for the plaintiff, thus describing the land, “ for all the land in Cambria county down to the line established by Mr. Gwin and E. A. Viokory in the year 1849,” was held to be sufficiently descriptive to sustain the judgment. In Emig v. Diehl, 76 Pa. 359, the premises, as set out in the writ, were, “ a tract of land situate in Jackson township ; containing 185 acres of land or thereabouts; bounded by lands of Michael B. Emig, John Eyster and Valentine Emig.” Though the plaintiff, by leave of court, filed an amended description of the land, describing it by courses and distances and as containing 221 acres or thereabouts, the description of the premises in the writ was held to be sufficiently certain under authority of Clement v. Youngman, 40 Pa. 341, and Smith v. Brotherline, 62 Pa. 461. In Hunt v. McFarland, 38 Pa. 69, the judgment was reversed for the reason that the verdict was too vague and uncertain. The court said: “ On referring to the writ, it is indescriptive except for adjoiners. No state or form of the land in dispute is given. We think a delivery of it could not be made by tbe sheriff. If the jury had found for the plaintiff by a straight line from the maple to the chestnut corner, as they doubtless intended, it would have been sufficient, for this could have been certain.” But the decision must be interpreted in view of the facts of the case. The court said: “ The dispute between the parties arises about the south boundary of the plaintiff’s land, which is the defendant’s northern boundary, and is dependent on where the line of the donation tract was or is to be run on the south side.” It thus appears that the uncertainty in the verdict consisted in the doubt as to the location of the boundary line in dispute between the parties — the sole question in controversy — and for this reason the finding of the jury was too vague to sustain the judgment.

On the trial of the case the defendant submitted a point as follows: “ The description of the property mentioned in the writ is too vague and indescriptive to admit of a recovery for plaintiff and your verdict therefore should be for the defendant,” which was refused by the court. The ’ jury was authorized to “ add any further description of the tract, that there has been evidence to justify introduced before you, if you desire to make it more specific.”

• The Act of March 14, 1872, P. L. 25, was passed to relieve similar defects. When there is no room for doubt as to what was tried and found it is the duty of the court to allow the filing of an amended description if one be needed: Parks v. Boynton, 98 Pa. 370. The delivery of possession on an habere facias possessionem is done under the superintending power of the court, which will be promptly exercised in case the plaintiff takes what he has not recovered. It is impossible to describe a tract of land with so much certainty as to enable the sheriff to deliver it without some person on the ground to show him the boundaries alluded to in the writ: Fisher v. Larick, 7 S. & R. 97; Tryon v. Carlin, 5 Watts, 371; Hawn v. Norris, 4 Binn. 77; Lake Winola Assn. v. Mott, 1 Pa. Superior Ct. 304; Carroll v. Miner, 1 Pa. Superior Ct. 439.

The quantity of land for which ejectment is brought is not essential to the description if it can be otherwise sufficiently described: Griffeth v. Dobson, 3 P. & W. 228.

The description in the writ is not so manifestly indefinite as to justify the court in reversing the judgment for that reason.

The assignments in which other errors are alleged are answered in Ewing v. Ewing, 96 Pa. 381, and in Campbell v. Braden, 9 W. N. C. 487.

The judgment is affirmed.