1 Pa. 295 | Pa. | 1845
The opinion of the court was delivered by
The first error assigned is a bill of exceptions to the admission in evidence of a draft of survey, made by David Rockefeller. Mr, Rockefeller had just closed his testimony, as a witness on behalf of the plaintiffs below, who are the defendants in error, in which, among other things, he had testified, that he made a survey embracing the • land in dispute, of which he made a correct draft, that was produced in court, and testified by him to be the same. This draft was then offered in evidence, but objected to by the counsel of the plaintiff in error. The court, however, overruled the objection, and admitted the draft, which was excepted to. We are wholly unable to discover any error in the admission of the draft in evidence. It was only given as explanatory of what Mr. Rockefeller, the surveyor, testified he had done in making the survey on the ground, which has ever been held admissible for such purpose, and not unfrequently renders the testimony of the artist more intelligible than it would be without it.
The second error is an exception to the admission in evidence of the record of an action of trespass vi et armis, brought by the plaintiff in error against the defendant in error, for Breaking and entering into
The remaining errors are exceptions to the charge given by the court to the jury. But before we proceed to speak of them, it may be necessary to state some of the facts in the case, which were not controverted, as also some of the questions of fact, which were contested. The land in controversy appeared to have been granted originally by the Commonwealth- to Henry Staybrook, by warrant dated the 8th of March, 1793, calling for three hundred acres, under which two hundred and ninety-one and a half acres, beside allowance of six per cent, for roads, &c., were surveyed, and returned to the Surveyor-General’s office. Neither of the parties litigant appeared to have any claim to the land, excepting what they had acquired by disseisin. The father or ancestor of the defendants in error, with his father, William Furman, and two of his brothers, Jonathan and Isaac, and an Aaron Furman, a cousin of the latter, entered upon the tract of land granted and surveyed, as mentioned, to Henry Staybrook, by clearing, fencing, and cultivating certain portions of it. There was a pretty high ridge about the middle of the tract, extending from the one side thereof to the other. Aaron Furman erected a house on the south side of the ridge, where he lived for some years, clearing and cultivating some portion of the land situate on that side of the ridge. Daniel Furman, the father of the defendants in error, and his brothers were settled on and lived in houses on an adjoining tract of land, near to the line bounding the Staybrook tract on the north side of the ridge, from which they entered upon, and cleared and cultivated certain portions of the land within the Staybrook survey, on the north side of the ridge, at the same time that Aaron Furman was living and clearing and cultivating on the south side thereof. This appeared to have been forty years ago, and upwards, and before Hoey, the plaintiff in error, came on the land. Some evidence was given, tending to show that a division line had been agreed on and established along the top of the ridge, between Aaron Furman, of the one part, and the other Furmans, including the
The court, among other things, instructed the jury, “That if the plaintiffs below had designated the boundary, and held an actual adverse possession for twenty-one years; then their title, by the statute of limitations, would extend not only to the cleared land, but would embrace the wood land within those boundaries.” And again, “ If the jury believed that there was a division since established, as heretofore mentioned, (in the charge,) and that the plaintiffs, and those under whom they claimed, had had a continued notorious adverse possession up to that boundary for thirty years; and if they believed that the land described lay northerly of that boundary, then the court could not see any thing to prevent a recovery by the plaintiffs of the land north of that line, if the facts as mentioned were proved.” And further, in the close of their charge, the court told the jury, “that the verdict and
On the argument of the cause, it was contended, that because the defendants in error, or their father, have never resided on any part of the Staybrook tract, but on an adjoining one, they could have no right that would entitle them to recover, unless possibly what they had cleared and cultivated; but as the plaintiff in error had not encroached thereon, they were not entitled to recover. But it is a great mistake to suppose that the residence of a disseisor upon the land into which he has wrongfully entered, is in the slightest degree necessary to give him any right thereto, that he may not otherwise have. Even as against the owner, the residence of the parties making the wrongful entry into the land has never been held or deemed necessary to constitute a disseisin. Residence on the land has nothing to do with it, because the owner may be as completely evicted and removed from his possession of the land, by clearing, fencing, and cultivating it, without the wrongdoer’s residing thereon, as if he resided thereon at the same time. And more especially may this be the case where the land is in a wild and unimproved state, without any building thereon whatever. Nay, further, a disseisor may doubtless acquire a good title to the land against the legal owner without any residence thereon .under the statute of limitations. It is not like the .case of vacant land which has never been granted by the Commonwealth, for as against her, the statute never can run; but a man by entering thereon, and erecting a dwelling-house suitable for his habitation,, and by clearing a portion thereof, and growing grain thereon, may acquire a pre-emption right to entitle
The judgment is therefore affirmed.