194 Pa. 301 | Pa. | 1900
Opinion by
The facts involved in the present contention are sufficiently set forth, together with the question arising upon them, in the opinion of this Court, when the case was here before, 173 Pa. 82. On the last trial in the court below the learned trial judge followed our ruling with great care and preciseness, and committed to the jury with perfectly correct instructions the very question stated by our late Brother Williams in the former opinion. The charge of the court was in exact compliance with our decision. Thus, the jury was instructed as follows: “ There are two questions to be submitted for your determination, and in submitting them T follow strictly what I believe the instructions of the Supreme Court with reference to this case. And the first question is, whether the respective owners of these farms have agreed upon the location of the division line between the same as claimed by the defendant, built their division fence accordingly, and held and occupied respectively up to the fence, as their common boundary, for more than twenty-one years before this suit was brought. If you find that they have done so, in other words, if you determine this question in favor of the defendant,
The remaining assignments relate to the rejection of certain disputed offers of testimony. The first and third assignments have been effectively disposed of in the opinion of the Superior Court. They assume that the determination of what was the recognized division line between the parties rested with the witness and not with the jury. What was the “ recognized ” division line was the whole subject of the controversy, and as a matter of course to be determined by the jury alone upon all the testimony, and not by any one witness upon any or all the evidence. Both of the rejected questions required the witness to answer that there was a “ recognized division line ” which he certainly could not do. The second and fourth assignments are equally untenable. The witness, the defendant, was clearly incompetent under our act of 1887 to testify to the matters inquired of, as is so clearly pointed out in the opinion of the Superior Court. It is there tersely and forcibly said, “The right of Grubbs had-passed to the plaintiff. Grubbs was dead. The defendant therefore was incompetent as a witness to prove an agreement for a
Judgment affirmed.