Potts v. Everhart

| Pa. | Jul 1, 1856

The opinion of the court was delivered by

Woodward, J.

Whether the plaintiff had held adverse possession for 21 years up to the old fence — and if he had not, where the true line between him and the defendant was, were questions ’ of fact which were submitted, as was proper, to the jury; and from the verdict rendered we are to take these two' conclusions of' fact as established — 1st, that the plaintiff had not such possession as would give him title to the land in question under the' statute of limitations; and, 2d, that the true boundary between the parties is that on which the defendant has set his new fence.' These conclusions put the plaintiff out of court.

But he complains that the declarations of David Wynn,' the grantor of the defendant, were admitted in evidence to contribute to those conclusions, and this he considers an error for which the judgment should be reversed. To weigh properly the legal character of these declarations it is necessary to consider, a little in detail, the relation of the two tracts of land, and of their respective claimants.

The “Bullberry” tract claimed by the plaintiff adjoins the' William Howe tract on the south, and the line between them is straight. But their corners on the sides that are contiguous do not coincide. The south-west corner of the Howe tract, a hickory tree, is some ten rods beyond- the corner of the Bullberry, and-the latter extends far beyond the chestnut, which is the north-east corner of the Howe. From the point, however, in the south boundary of the Howe tract at which the Bullberry makes its cor-' ner, to the chestnut, the straight line is common to both tracts— the southern boundary of the one, the northern of the other.

Wynn became tbe owner of tbe “Howe” tract in 1805, and resided on it at the time the declarations complained of were made. He or his predecessors in the title had built a fence, known in the evidence as the old fence, which began at the hickory corner, and ran for some distance the course of. the line, but then separated from it, and ran, by no very steady course, a few rods north of the line from the hickory to the chestnut. He sold and conveyed, many years ago, part of his tract to Robert Gilmer, and 'the dividing line as established between them was perpendicular to and terminated in the above-named line at a stone’s corner, which, according to the evidence, was a little south of the old fence. The declarations of Wynn, which are the subject of the bills of exception, relate to these two corners, the hickory and the stones, neither of which is a corner of the Bullberry survey, but.which are the two corners of that part of the Howe tract now claimed by the defendant, and between which he built the new fence that provoked this ejectment. The plaintiff claims that the true boundary between the two tracts was north of where the old fence stood, but conceding that Wynn by his long possession had acquired title down to the line of the old fence, he' denies the right of the defendant claiming under Wynn to remove the fence further down on land which he regards as his own, and thus it is apparent that the disputed territory is that lying between the new fence and the line of the old fence. It was uncleared land, and if the plaintiff sometimes trespassed. upon it to take timber, the verdict proves that he had no such possession of it as would be title under the statute of limitations. The original warrants were not in evidence, and from such of the title papers as were exhibited it is impossible to ascertain which tract was first surveyed. Under these circumstances were the declarations of Wynn, who is now deceased, evidence fit and competent to go to the jury ?

When a man enters into possession of a tract of land with title or colour of title, and marks corners, or adopts those already on the ground, and asserts them to be his boundaries, and claims to hold up to them, his declarations, always evidence against himself, are, when offered for himself or others claiming under him, something more than mere hearsay evidence. They constitute a part of his acts — of thé res gestee — and as such are always received in evidence in questions of possession. They are evidence for him on the same principle that the facts of taking possession, of maintaining it, of marking lines and corners, and of making improvements, are evidence in his favour. These are acts of dor minion. Demonstrations of an intention to appropriate the land indicated, assertions of right and title, and declarations accompanying and explanatory, are parts of the acts themselves. The word and the deed suited and united to each other, must be taken together, like the cry of the mob and their acts in Lord George Gordon’s case. A transaction that is made up of coincident assertions and actions must, in its proof, include both its parts. It is but half proved if either is omitted. If the res gestae be competent, it is as unphilosophical as it is against the authorities of the law to object to one of its actual elements. That it has been the course of this court to receive declarations such as are complained of in the record, is apparent from the cases cited in the argument, to which may be added Mills v. Buchanan, 2 Harris 59, Cone v. Philadelphia, 4 Harris 87, and all those numerous cases of ejectment in which a party in possession under colour of title has been permitted to show that he claimed to certain boundaries, whether natural or artificial. Miles v. Miles, 8 W. & Ser. 136; Porter v. McGinnis, 1 Barr 413, and Clarke v. Dougan, 2 Jones 90, are types of this class of cases.

But it is argued that the maintenance of the old fence for fifty years was a strong expression of limitation of claim to that boundary. So it was, and the plaintiff had the benefit of it with the jury. But it was only an expression which might be explained or contradicted by others equally or more significant. There was nothing conclusive in such a fact, for a man is under no legal or moral obligation to set his fences on and not within the lines of his land. And a first fence built in the woods, however it may be designed to occupy a boundary line, is seldom found to be exactly upon it. Wynn did not, therefore, necessarily lose title to the land south of the fence, by maintaining it even for half a century short of the line on which he might have erected it. His title papers called for a straight line, and he claimed the hickory and the stones as his corners. A straight line between these corners was then the boundary of his claim when he sold to Ever-hart. And if his title was older than the Bull warrant, the law would adjudge him in possession all the while of the disputed strip, though outside of the old fence; for, so long as there is no actual entry and ouster, a man is constructively in possession of all the lands his titles cover, wherever his fences may be built.

The plaintiff might have availed himself of this principle if he could have shown that his title was older than the defendant’s; but this was not shown, and where in .ejectment there is a defect in the proofs, potior est conditio defendentis.

On the whole, we conceive there was no error either in the instructions given, or in the evidence admitted, and accordingly the judgment is affirmed.