| Pa. | Oct 2, 1882
delivered the opinion of the court, October 2nd 1882.
This action of ejectment is for a piece of land about seventeen hundred feet in length, and varying from twelve to thirty-five feet in width. Both parties claim title under William Maelay. The contention is whether this land was taken and appropriated for permanent use by the commonwealth for canal purposes, under its right of eminent-domain? For so much as was thus taken the heirs of Maclay received payment. The title thereto passed to the commonwealth in perpetuity, and from the latter to the plaintiff in error in fee: Commonwealth v. McAllister, 2 Watts 190" court="Pa." date_filed="1834-05-15" href="https://app.midpage.ai/document/commonwealth-v-mallister-6311204?utm_source=webapp" opinion_id="6311204">2 Watts 190; Wyoming Transportation Co. v. Price, 31 P. F. Smith 156.
The contention is one of fact. The plaintiff claims the land in dispute is part of a piece of eight acres and seventy two perches taken by the Commonwealth in 1828. It is, then, a question of location. It appears to be conceded by both parties that the northwest corner is pretty well established. A stone has been placed there. It is called the “ Runk corner.” The dispute is as to the precise location of the western line of the survey. -Besides trying to locate by courses and distances, the effort is made to locate by monuments on the ground. On the part of the plaintiff evidence was given tending to establish the original marks and boundaries of the canal on the ground. The defendant’s main effort is to locate the canal by fixing the location of a public highway", which the canal apipears to cross diagonally. The main complaint is that the case was not justly" and fairly submitted to the jury — that the evidence and theory of the defendant were fully and prominently presented, and the strength of the plaintiffs’ case was so presented as not to call their attention to the main points in the plaintiffs’ case. If there be material misdirection in the charge of the court, it is sufficient ground for reversal, though no instructions were asked; and it is error to confine the attention of the jury to one view of the case, where there is more than one which they should consider: Garrett v. Gonter, 6 Wright 143; Relf v. Rapp, 3 W. & S. 21. If no particular instructions be asked, the court is responsible for the general effect only of the charge; and in considering the charge, the whole of it must be taken together. If when so considered it has a tendency to mislead, though no particular portion of it be clearly erroneous, it is cause for reversal: Washington Mutual Fire Insurance Co. v. Rosenberger, 3 W. N. C. 16.
The plaintiff gave evidence tending to prove by able engineers and surveyors the original marks on the ground. Thus, by one, that he had the sediment or mud removed from the upper side of the canal at several points, and found in several places the marks of the pick in the slate rock, distinctly showing the
Another experienced engineer testified substantially that with the original report of the viewers and the draft attached, he went upon the ground and examined the location. That he also found in the office of the auditor-general the contract relating to the construction of the canal, giving the dimensions of the portion which passed through the Maclay estate. He also carefully examined the lines of the survey made by John Roberts when the State took the land. Still another surveyor testified that, with a copy of the original survey when the lot was taken, he also went on the ground, found the Bunk comer, and made a most careful, searching examination and survey. He examined the foot of the old or original slope of the basin, which constitutes a part of the land taken by the State, and was surveyed with the land occupied by the bed of the canal. These three witnesses concur Avith several others called by the plaintiff in sustaining the view that the defendant is in possession of a part of the land acquired by the Commonwealth; yet the evidence was not adequately presented to the jury by the court. Thus, in referring to some of the evidence of the plaintiff, the learned judge said, “if the. western line is pushed over, it will appropriate that piece of land claimed by Mr. Harris.” Most certainly it Avould include some claimed by him. This suit Avas brought for the purpose of recovering it, and the evidence was given to prove the plaintiffs’ right thereto. The jury might well understand the remark of the judge as' a caution to be careful about giving much weight to the evidence Avhich tended to give to the plaintiff the land claimed by the defendant.
The evidence given by the defendant in regard to the location of the public road seemed to meet with more favor. The general tenor and effect of the charge does not stop with giving-due and full weight to it, but is calculated to make it paramount to all the evidence of the plaintiff, and to make the evidence of the latter yield whenever it came in conflict with that evidence of the defendant. We think a sharply defined cut in the solid bank or rock on the side of the canal may be as satisfactory a monument of location as the track of a highway on the surface of the ground.
In ascertaining the boundaries of the land taken by the Commonwealth, if satisfactory monuments on the ground cannot be found, regard must be had to the purpose for which the land was to be used, as bearing on the quantity probably taken.
As time does not run against the commonwealth, and this suit was brought in less than twenty-one years after it parted with the title, no adverse possession-can bar the plaintiff’s right to recover. Hence, the remarks of the learned judge as to possession of the defendant since 1828 were calculated to mislead the jury. They should be distinctly told that he acquired no title by virtue of his possession; that it is to be considered only in so far as it bears on the question of the extent of the possession actually taken by the commonwealth.
It appears as if the plaintiff was denied a recovery for a part of the land on which the tow-path was originally built. If this be so, it is clear error.
Without commenting further on the specifications in detail, they are affirmed in so far as they assign errors which are in conflict with the rules and principles declared in this opinion.
Judgment reversed and a venire facias de novo awarded.