Horn v. Miller, No. 74

No. 74 | Pennsylvania Court of Common Pleas, Bedford County | May 25, 1891

Per Curiam :

We are of opinion that the court below properly rejected the offer of evidence embraced in the first assignment. The offer was to prove by the witness on the stand, and others, the terms of the compromise of the suit between Enoch Cade and John Miller, the circumstances leading to that compromise, and that it was compromised on condition that Mr. Cade was to erect a mill forthwith. The compromise referred to was a settlement of the suit of Cade v. Miller. It was an agreement in writing, carefully prepared, submitted to and approved by the counsel in that case, acknowledged before a justice of the peace, and recorded July 9, 1852. It needs no argument to show that it would have been grave error for the court below to have permitted witnesses, after the lapse of nearly forty years, to give their imperfect recollection of what led up to that settlement, and to add to its conditions. If such evidence were admissible, nothing in this world could be considered as settled, excepting that the law upon this point is unsettled.

The third assignment does not conform to the rules of court.

The remaining assignments allege error in the charge of the court, and in the answers to points. We need not discuss them in detail. The learned judge below fairly submitted to the jury the question whether the defendants’ admitted use of the water for more than twenty-one years was adverse. Such use was conceded to have been peaceable, undisputed, visible, open, notorious, and continuous. “ If,” as the jury were instructed, “it was used inconsistently with the right which Cade, and those holding under him down to Horn, had as to the use of the water to the extent of two wheels as a superior or first right, by virtue of the contract of July 8, 1852, then it was adverse. If the use was consistent with the right of Cade or Horn, it was not adverse. To find whether it was by defendants’ use inconsistent with the rightful use of the plaintiff, Horn, and those under whom he claims, is a question of fact for the jury; and it is the fact in this case.” The learned judge then proceeded further to instruct the jury that, in ascertaining how Miller was to use the water, they must be guided by the agreement of July 8, 1852. In this we see no error. That was a settlement of a suit then pending, in which Cade alleged a diversion of the water. That settlement gave Cade the superior right, and defined how Miller could use the water in the future.

Judgment affirmed.