270 Pa. 341 | Pa. | 1921
Opinion by
Plaintiff filed a bill in equity averring he was the owner in fee of the bed of an alley, which defendants, his next door neighbors, wrongfully claimed they had the right to use, and, in the exercise of this alleged right, had broken down the fence between it and their property, had ejected plaintiff from the alley when he protested against their use of it, and proposed to continue its use
Among the findings of fact by the trial judge, sustained by the court below, are the following: The houses on the two properties were erected at the same time and the common ownership thereof continued until April 23, 1868, when they were conveyed to different persons, one of whom ivas plaintiff’s predecessor in title, and the other defendants’; the alley is entirely upon plaintiff’s property; it is not referred to in any of the deeds in the chain of title of either party, though in all of them is the general grant of “alleys,” there being another in the rear of and used by both properties; “prior to the year 1877 there is no evidence as to either permission to use or objection to the same;......between the years 1877 and 1904 there is no evidence of express permission, but ......the use of the alley by the tenants of [defendants’ property] was permissive, and at any rate it was not adverse, and hostile”; “from that time on......express permission was given to the tenants of [defendant’s property] to use the alley,” so far as it was used by them, though at times they were wholly excluded therefrom by plaintiff and his predecessors in title fastening the gate leading into defendant’s property; “there had not been any open, notorious and adverse use of the aforesaid covered alley, or any denial of any rights therein of the plaintiff or his predecessors in title by the defendants or their predecessors in title and their tenants, for any period of twenty-one consecutive years prior to the filing of the bill in this case,” and “at no time was the use adverse or hostile and it was not continuous.”
Some of these findings are assigned as error, but, in the statement of the question involved, appellants limit themselves to the claim that their predecessors in title had “the free and uninterrupted use of [the] alley for
Restricting ourselves, therefore, to the period between 1877 and 1904, we find but three witnesses testified regarding the use of the alley during that period. One of them said that, from 1877, when he was twelve years old, he used the alley during six or seven years to visit his playmates in each property, and that the alley gates opening therefrom were never closed. He does not say how often he used the alley, or whether by permission or otherwise; and since neither he nor his parents owned or lived in either house, his testimony is of little value in solving the question at issue. Another, who was a daughter of a former owner of plaintiffs property, and moved thereon about 1879, when she was two years old, and left when she was twenty-one, says she never saw nor heard of the gate into defendants’ property being nailed up; that she went “quite often” from her father’s yard to that now owned by defendants, and we “never had any question with any of our neighbors. We were always friendly”; but she could not tell how old she was when she first remembered the gate, could not say it was there in 1884, or whether it was opened at that time simply as a friendly act for their then neighbors. Nor does she tell of any user by defendants or their predecessors in title or by any one other than herself, and she, as a daughter of the owner of the alley, had a right to use it. The third was the mother of the last witness. She says the gate into defendants’ property was already there in 1877 when she and her family moved into plaintiffs property, and it continued there during the succeeding thirty years; that it was never locked, and was used by the occupants of defendants’ property during that period, without any disturbance regarding it; that its use was not discussed; that when they sold to plain
It is clear, therefore, we could not reverse the court below on this vital point without doing violence to our oft expressed rule that “The findings of fact by a judge, -which involves the credibility of witnesses and the weight to be given their testimony, will be given the effect of a verdict of a jury, and will not be disturbed where there is testimony to support them” (Cruzan v. Cruzan, 243 Pa. 165; Shimer v. Aldine Trust Co., 264 Pa. 444; Gongaware’s Est., 265 Pa. 512, 515); and this we are not willing to do.