152 A. 682 | Pa. | 1930
These three actions of ejectment involve the title to three parcels of land situate between low watermark of the Kiskiminetas River and State Highway Route No. *479 66, in Parks Township, Armstrong County, in this State. By agreement of the parties, the cases were tried without the filing of the declaration, answer and abstracts of title required by the Act of May 8, 1901, P. L. 142, 143, and its amendments of June 7, 1915, P. L. 887, and June 12, 1919, P. L. 478. This course would not have been objectionable if the agreement had set forth all the matters required by the statutes, and specifically stated what issues of fact were admitted and what were to be tried. It did not do so, however, though a few were admitted, and hence it was erroneous practice to permit evidence of "matters not appearing in the pleadings," despite the mandatory provisions of the statutes that this shall not be done. At the trial, the court below held that the record title to the property was in defendant, but submitted to the jury the question as to whether or not plaintiffs had acquired a right by adverse possession. The jury determined that they had; the court in banc entered judgment for defendant non obstante veredicto; and plaintiffs have separately appealed. The cases involve the same questions, and all three of them will be decided in this opinion.
In the course of the construction of the Pennsylvania Canal, as authorized by the Act of February 25, 1826, P. L. 55, and its supplements, the board of canal commissioners built a dam across the Kiskiminetas River at a greater elevation than the natural surface of the stream. The effect of its construction was that the surface of the river was so raised in height and extended in width as to cover all of the disputed property. The construction of the dam and the flooding of the land were both essential to the operation of the canal, and the status thus created continued for nearly forty years, until, in 1866, the dam burst, the river receded to its natural height and width, and the overflowed property again became fast land. The dam was not rebuilt, and our first question is to whom the uncovered land thereafter belonged. *480
In Foust v. Dreutlin,
Plaintiffs also contend that they have a valid title by abandonment or by adverse possession. How abandonment *481
could give them a title is not stated. If we assume that defendant's failure to use the land during a period of years — and this is the limit to which the evidence goes — would cause it to lose its title (which, of course, it could not), this would not operate to give the title to plaintiffs, and since they, must recover, if at all, on the strength of their own title and not on the weakness of defendant's (Adams v. Johnson,
It is also clear, therefore, that if plaintiffs are to defeat defendant's record title, it must be by proof of one acquired by adverse possession. The burden of proving this is on them, and it will not arise unless there is satisfactory evidence of their actual, continued, exclusive, visible, notorious, distinct and hostile possession of the land for the full period of twenty-one years: Hawk v. Senseman, 6 S. R. 21; Wright v. Guier, 9 Watts 172-5; Pierce v. Barney,
In the instant cases there is no proof of appellants' twenty-one years exclusive occupancy of the whole of any of the three tracts. They did not fence or otherwise enclose them, but it is alleged that, at times, parts of them were cultivated, and that during portions of the year sand and gravel were taken from them. From these facts appellants contend that, as they claimed to do these things under color of title, they were in constructive possession of the rest of the land. The evidence fails to disclose that they ever made any such claim, and, if they had, it would have been unavailing. An entry is under color of title only when made under a bona fide claim to all the land, as distinguished from a pretended claim thereto: Green v. Kellum,
Moreover, their evidence expressly excludes the idea that for twenty-one years they had exclusive possession of any of the tracts in their entirety. Their own witnesses (and there were no others), testified that "anybody that wanted to could run around on this land," and that it was used as a common pasturage ground, not only by the cows of neighbors, but for many that crossed the Kiskiminetas River for the purpose, and that this continued until a date variously stated as being 1893, 1895 and 1898. Appellants' possession of the whole of the tracts could not have been exclusive while this use continued. Hence they cannot recover at all, because the earliest of those dates precludes the idea that they had exclusive possession for twenty-one years, since the pasturage in 1893 could only have been between the time the grass began to grow in the spring of that year, until the date it dried up in the fall, whereas it is admitted "that the defendant, continuously since on or about January 1, 1914, has been in actual possession of the three tracts of land." *484
We have not overlooked appellants' contention that the tracts had been assessed to them from 1850 to 1928 (during the first part of which period they had belonged to the State and during the last part were used by defendant for railroad purposes), and that they paid the taxes thus assessed during all that time. The record does not sustain the fact of payment as claimed, but if it did the result would be the same. The fact of such payment is evidence, but "cannot be considered as giving [the payor] actual possession in contemplation of law, especially of that notorious adverse kind which is necessary to constitute an ouster of the party having the legal title": Naglee v. Albright, 4 Wh. 291, 300; Bear Valley Coal Co. v. Dewart, supra; Daniels v. Adlof,
The following questions, which apparently lie at the root of this controversy, were not submitted for consideration to either the court below or this court, and are only referred to now lest it be supposed that they have been overlooked by us: 1. Can an individual, in the first instance, successfully maintain ejectment to obtain possession of the roadbed of an operating railroad? 2. If so, can he do so upon a title which he now claims he had at the time the railroad company made an extensive fill in order to grade the ground properly, construct the railroad thereon and subsequently operate it, all of which he knew was being done, yet made no objection thereto until fourteen years thereafter? If it was necessary to answer these questions in order to decide the case properly we would do so, but it is not.
Each of the three judgments of the court below is affirmed. *485