5 Pa. Super. 456 | Pa. Super. Ct. | 1897
Opinion by
When this case was heard about a year ago, 2 Pa. Superior Ct. 422, one of the assignments of'error was directed to a point presented by the defendant and to the answer of the court thereto. The point and answer were as follows: “ If the jury believe the evidence of Israel Watson, that the plaintiff agreed to abandon the road in dispute on the completion of the new road, the plaintiff cannot recover and the verdict of the jury must be for the defendant. That point is affirmed.” The inadequacy of the point was sustained for the reason that it did not affirm as a fact that the new road had been'completed. We' said then in reference thereto: “ The mere agreement between Hudson and Watson, even if actually made, would not be sufficient upon Avhich to base an' abandonment of the easement claimed by Watson, unless that agreement was'actually carried
If in that portion of the charge of the court to the jury embodied in the second assignment of error the court intended to
None of the other assignments of error are sustained. Even if the trial judge were mistaken in his recollection as to the name of the witness who testified as to Watson’s declarations in regard to the character of the road through his premises, as complained of in the third assignment, it would not he a reversible error. The name of the wdtness is not stated as a fact and, therefore, the question was practically left to the jury.
As to the fourth, fifth, sixth, eighth and ninth assignments it is only necessary to say that two of the essential qualities of easements are that they are imposed for the benefit of corporeal property and that there must be two distinct tenements, the dominant to which the right belongs and the servient upon which the obligation rests: Washburn’s Easements and Servitudes (3d ed.), 1873, sec. 3. They do not attach, at least when claimed by prescription, to the person. The same particularity, therefore, in regard to the title of the dominant tenement is not necessary as in the case of an ejectment. If the occupier of the dominant tenement who laid the foundation of the right of way by prescription were there by a claim of right, as John Moore seemed to be, we think the necessary conditions of acquiring a right by prescription were fulfilled. Although the
As to the seventh assignment, there is no attempt on the part of the plaintiff to recover for damages sustained by the public. The fact that the- public traveled the road referred to does not necessarily interfere with his right of way as claimed in his statement. As a matter of careful pleading, it would have perhaps been better to have omitted the statement as to the public but we cannot see that the statement of this fact interferes with the right to recover. It is, at the most, a bit of surplus-age which would have been stricken out by the court upon application.
Being compelled to sustain the first assignment of error and also the second, if the construction put by the appellant upon the part of the charge of the court complained of therein is correct, as it seems to be, the judgment is reversed and a new venire awarded.