Perkiomen Railroad v. Kremer

218 Pa. 641 | Pa. | 1907

Opinion by

Mr. Justice Stewart,

The one question in the case was, whether the strip of land in dispute was included in the right of way which defendant’s predecessor in title had conveyed to the plaintiff. The deed of release, executed and delivered in 1869, contained only a general description of the premises, and the exact boundaries can now only be determined as the center line of the railroad as then constructed can be ascertained. If located as contended for by the plaintiff, then the disputed ground was embraced in the release, and the right to the same is npw in the plaintiff. The plaintiff offered in support of its contention nothing except the deed of release, and the testimony of its engineer, who testified simply as an expert from data obtained in the office of the plaintiff’s company in Philadelphia, and the information which he derived upon inquiry of others supposed from long residence to be familiar with conditions as they had existed. The draft which he exhibited he had prepared from the data obtained from the office of the railroad company; the information he gained upon inquiry he applied only by way of corroboration of the results reached from the former. These data consisted of what was claimed to be the original right of way plan of the companjq and field notes in connection therewith, together with a stationing plan. Notwithstanding the fact that the company’s track had been more or less shifted, it was contended by the plaintiff, and the contention was supported by the witness, that the original center line contemplated in the deed of release could, with help derived from these plans and notes, be definitively and accurately determined. The witness had not himself assisted in the original location of the road, having been in the plaintiff’s employ only during the last four or five years. The authenticity of the plans and notes was not admitted by the ‘defendant, but the witness was allowed to state his conclusions therefrom. His testimony was persuasive to the mind of the court; and in the general charge it is thus referred to: “ This evidence, of course, if believed, would establish that this defendant unfortunately is on the railroad property; and in order that the jury could find against this evidence, there ought to be something which would warrant such a finding.” A verdict for the plaintiff was directed.

The case calls for no expression from us as to the strength of defendant’s case. He and those under whom he claimed, had been in the exclusive occupancy of the disputed strip since 1869, when the deed and release were executed. Permanent structures had been built on the premises, the defendant at the time of suit maintaining thereon a large brick bakery which he had erected in 1898. If the plaintiff was entitled to recover it was because its own title had been established. Whether it had been established depended entirely 'upon the sufficiency and accuracy of the data employed by the witness, the engineer, Panning, in determining where the center line of the company’s track was at the time of the making of the release, and the accuracy of the result he reached. It is not for us to question either ; no more was it for the learned judge of the court below to determine their conclusiveness; that could only be done by the jury. It was not a question whether the defendant had offered anything against the testimony of this witness. The learned judge did not exceed the limits of judicial privilege when he instructed the jury in his general charge, that in order to find contrary to this evidence there ought to be something which would warrant such finding; but in directing the jury to find a verdict for the plaintiff in accordance with this evidence, and upon it alone, he was exercising a function that belonged exclusively to the jury. The burden was on the plaintiff to establish its title to the land in dispute, and this could only be done by evidence satisfactory and convincing to the jury. Whether it was satisfactory and convincing to them, they only could say. The evidence was wholly oral, and this of itself necessarily drew the case to the jury. “ However clear and indisputable may be the proof, when it depends upon oral testimony, it is nevertheless the province of the jury to decide under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of evidence: ” Reel v. Elder, 62 Pa. 308. The assignment of error which relates to this action of the court must be sustained.

It is only necessary to say with respect to the remaining assignments, that the doctrine of estoppel is without application here. No error was therefore committed in striking from the record the testimony as to the declarations made and directions given by certain of the officers — in this case subordinates — of the railroad company with respect to the extent of the right of way and the occupancy of the disputed ground. None of these parties could have given away or conveyed any part of the company’s property; and what could not pass by their direct act, could not pass by way of estoppel through their conduct: Pennsylvania Railroad Company’s Appeal, 80 Pa. 265.

We see no error in the record except as above indicated ; but for this the case must go back.

Judgment reversed and venire facias de novo awarded.