Marks v. Ligonier Borough

233 Pa. 372 | Pa. | 1912

Opinion bt

Me. Justice Elkin,

This is an action of trespass to recover damages for lands appropriated by the appellant for reservoir purposes, and for the purpose of laying water mains to connect therewith. The tract of land claimed by appellees upon which the trespass was alleged to have been committed contains eleven acres and 100 perches. The title to this tract of land was determined to be in the present appellees in an action of ejectment in which they were named as defendants. Upon the trial of the action of ejectment the jury returned a verdict “for the defendants the five acres as per exhibit No. 5, also the 11 acres 100 perches as per Deed Book 64, page 66, a total of 16 arces and 100 perches, the balance of the 55 acres in dispute to go to the plaintiff with six cents damages and costs.” A motion was filed asking for a new trial on the ground that the verdict was void because uncertain and vague. The trial court refused the motion for a new trial, ordered exhibit No. 5 and a copy of the description in Deed Book 64, p. 66, to be filed of record in the case, and directed judgment to be entered on the verdict. ■ From the judgment subsequently entered no appeal was taken and as a result the record shows an adjudication of the title to the eleven acres and 100 perches of land to be in the plaintiffs in the present case who were the defendants in the action of ejectment. The description in Deed Book 64, p. 66, to which reference was made in the verdict, and which was made part of the record in that case is as follows, to wit: “All that certain lot of ground situated in Ligonier Township, Westmoreland County, Pennsylvania, bounded on the North by Washington Furnace Run, by the Furnace Lands East and South, and on the West by other land of the said Nancy Marks and land of Joseph Naugle, containing eleven acres and one hundred perches.” The object of a description in a deed is to identify the land conveyed, and need not necessarily be technically accurate, but must be sufficiently precise for the purpose of identification and to enable a surveyor to locate it. The learned trial judge in the ejectment case held that the verdict based upon the description above recited was sufficient to meet the requirements of the rule, and although that question is not now before us, we concur in the conclusion then reached. In the present case we start with title to the eleven acres and 100 perches in appellees, and the only question for determination is whether the reservoir is located on this tract of land. This was the disputed question throughout the trial, and it necessarily depends upon the location of the land described in Deed Book 64, p. 66. The first contention of appellant is that under the facts the location of the land was for the court and not for the jury. It is argued that the verdict in the ejectment case was sufficiently definite to enable a surveyor to locate the land and that a surveyor did locate it so as not to include the reservoir site. Two surveyors were called as witnesses for the purpose of locating the tract in question, but neither of them made an actual survey on the ground. The first surveyor called took as the basis of his computation the eastern line of the Joseph Naugle tract as shown in the exhibit and with this as a starting point undertook to locate the tract between the Furnace run and the Old Furnace road, which were the northern and southern boundaries mentioned in the description contained in the deed. This left the eastern boundary an arbitrary line drawn by the surveyor so as to include the exact amount of land contained in the deed referred to in the verdict. The second surveyor in the main corroborated the testimony of the first in this paper location of the tract. The

plot from which the first surveyor made his deductions did not show the lines of the eleven-acre 100-perch tract. It showed a tract containing sixteen acres and 100 perches which of course included the tract in question, but did not definitely locate it. The second surveyor called conceded that the tract in dispute here might be located so as to include the reservoir site, and if certain facts recited from the evidence were true, he would so locate it. It was in evidence that there was an old fence from the northeastern corner of the Nancy Marks’ five-acre tract to Furnace run and that the land between this fence and the reservoir had been cleared and tilled for many years. Taking the old fence as a starting point the second surveyor conceded that the tract in question could be located on the ground so as to include the reservoir. Indeed, with all the facts as to possession and occupancy established, he testified that he would so locate the land. All of these facts tend to show that the paper location fixed by the surveyors depended not upon actual marks or monuments on the ground, nor,upon possession and occupancy following the course of title, but assuming the Naugle line as a starting point included sufficient area, between certain general boundaries mentioned in the deed and an arbitrary eastern line drawn for the purpose, to make the required number of acres. Under these circumstances we think that neither of the surveyors nor any of the witnesses called for the purpose, did so definitely locate the tract as. to warrant the trial judge in determining the question as a matter of law. The location of the land was a disputed question of fact and this was for the jury. As far back as Collins v. Rush, 7 S. & R. 147, it was held that while the construction of a written conveyance is the exclusive province of the court, the description of land conveyed, its limits and contents, are frequently mixed questions of law and fact. The books are full of cases in which this rule is recognized and approved. In the case at bar the location of the land was a question of fact for the jury and we see no error in its submission.

This brings us to the consideration of the second question raised by appellant, which is, should the jury have been permitted to consider testimony relating to the use and occupancy of the land prior to the trial of the action of ejectment? It is contended that all questions relating to use and occupancy were submitted to the jury in the ejectment trial and that the verdict in that case concludes the defendants there who are the plaintiffs here, from again introducing testimony of this character in an action of trespass for damages to the same tract of land. In other words, that all of these questions were merged in the verdict upon which plaintiffs must stand. This position ignores the different issues involved in the two trials. At the trial in the action of ejectment the question in controversy was title to the land, while in the case at bar the question for determination was its location. No question of title was involved in thé present suit. Again, the jury in the ejectment trial found that the title to the premises described in Deed Book 64, p. 66, was in the present plaintiffs. It therefore became necessary in the case at bar for the plaintiffs to offer that deed in evidence which was done. This was followed by testimony, uncontradicted, tending to show that for more than fifty years the plaintiffs and their predecessors in title had used and occupied the land in question, including the reservoir site; and that they had used and occupied the buildings, garden and sawmill actually located on the land now appropriated upon which the trespass for which damages are claimed was alleged to have been committed. ■ No objection was made to the offer and admission of this testimony, and no motion was made to strike it out at the conclusion of the trial. A point was submitted requesting the court to instruct the jury that no such testimony could be considered upon the ground that exhibit No. 1 was a correct survey of the land awarded to the plaintiffs by the verdict in the ejectment trial and that this survey showed the reservoir not to be included in the premises described in Deed Book 64, p. 66. The trial judge refused the point and we think properly so. Exhibit No. 1 was not necessarily a correct survey of the land described in Deed Book 64, p. 66. The surveyor who prepared the exhibit admitted on the stand that he had not made a survey of the particular tract in question. How could the court instruct the jury that it was a correct survey when the surveyor testified that he had not made a survey at all? In this connection we agree with the views expressed by the learned court below in the opinion filed denying the motion for a new trial. The whole case depended upon the location of the eleven-acre 100-perch tract and under the facts this was for the jury.

The able argument of counsel for appellant has failed to convince us that any reversible error was committed in the trial of the case.

Judgment affirmed.