209 Pa. 132 | Pa. | 1904
Opinion by
In his charge to the jury, the learned trial judge discussed all the questions of fact and law raised in this case and fully vindicated the correctness of his conclusions. There was no question of fact for the jury, and, as the law applicable to the case was against the defendants, the court very properly directed a verdict for the plaintiffs.
As clearly demonstrated by the learned judge in his charge, the plaintiff established on the trial of the cause a complete paper title to the premises in dispute. To meet and overthrow this title the defendants attempted to show title in themselves to the land by adverse possession. The sufficiency of the evidence entitling the defendants to have this question submitted to the jury is, as stated by their counsel, the question for consideration on this appeal. Charles Barney conveyed to Wads-worth in August, 1829. On April 24, 1830, he conveyed to John Bennett the one half of the coal under lots 15 and
Barney was Wadsworth’s vendor and his possession of the premises was Wadsworth’s possession until Barney did some unequivocal act, the knowledge of which was brought home to his vendee, tending to show that he held the premises adversely to Wadsworth: Ingles v. Ingles, 150 Pa. 397 : Olwine v. Holman, 23 Pa. 279. There was nothing in the evidence and no competent testimony was offered on the trial that would warrant the jury in finding any acts by Barney hostile to W ads worth’s title, nor indicating his intention to hold the premises against his vendee. Nor can appellants sustain their title by the alleged adverse possession of Henry Barney, who held lots 15 and 16 as devisee under the will of his father, Charles Barney. The acts of ownership exercised by Henry Barney over the two acres of land in dispute, alleged to be adverse and hostile to the possession of the appellees’ predecessors in title, are clearly insufficient, as pointed out by the trial judge, to sustain a title by adverse possession for the length of time required by the statute. Not only is this true, but like his father, Henry Barney made a distinct recognition of the Wadsworth title in the grant of his interest in lots 15 and 16 by deed dated April 22, 1867, by “ reserving and excepting two acres sold by Charles Barney, the father, to Tertius Wadsworth by deed dated 6th of August, 1829, recorded in deed book No. 26, p. 271.”
It is further contended by the appellants that Thomas Appleton acquired title to the premises in dispute by adverse and hostile possession for a period of time more than twenty-one years immediately prior to the bringing of this suit. But the character of his possession was not such as to sustain this contention. He had a scrambling, if any, possession of the sur
He who successfully defends his title to land by adverse possession must show that the possession was actual, continued, visible, notorious, distinct and hostile for the space of twenty-one years: Hawk v. Senseman, 6 S. & R. 21; Mercer v. Watson, 1 Watts, 330. He must keep his flag flying in a visible and hostile manner: Plummer v. Hillside Coal & Iron Co., 160 Pa. 483. Appleton’s possession of this coal, according to his own testimony, was neither open, visible nor notorious, such as is required in adverse possession to establish a valid title to land. His access to the coal was obtained through a small opening into a mine on the adjacent premises and several hundred feet distant from the land of the appellees. The latter, therefore, had no reason to infer or believe he was entering upon their premises or had any intention of mining or removing the coal under the two acres of land. On the contrary, the only reasonable inference from his action was that his purpose in entering the mine on the adjacent premises was to remove the coal from that mine, and that he confined his mining operations within the territorial limits of the mine which he entered. His manner of entering the appellees’ premises was, therefore, neither open, visible nor notorious, and hence was not of such a character as would suggest to the appellees that their possession of the coal under the land was being invaded by an adverse and hostile claimant. Such entry was covert and clandestine, and gave no notice to the appellees of a hostile claim to their premises, nor put them upon inquiry as to whether their coal was being mined by Appleton. There was nothing hi Appleton’s conduct that would lead the appellees to believe that he intended to invade their premises and remove their coal. In Delaware
The refusal to grant a nonsuit is not the subject of review on appeal, as we have repeatedly decided, and hence the first assignment need not be considered.
The judgment is affirmed.
