272 Pa. 84 | Pa. | 1922
Opinion by
Plaintiff sues in ejectment to recover the southern part of lot No. 42 in Freeport, Armstrong County; the
Appellee’s title to the land between the wasteway and the southern side of the lock is quite clear; it took, like all other condemnors, land adjacent necessary for the proper enjoyment of the thing condemned, and not only was the wasteway a part of the canal, but also, for the proper maintenance of it, ground sufficient on either side of it was necessarily included in the condemnation so as to preserve the property condemned (Pennsylvania Canal Co. v. Harris, 101 Pa. 80, 93); the part in controversy is the small strip, about seven feet by sixty-six feet, between the wasteway and the northern line of defendant’s wall.
The evidence did not disclose the exact location of the wasteway, but, when the State built the canal, a dwelling house and store extended from the lock, over the 30 feet of land, partly to, if not altogether over, the waste-way; before 1859 the house was moved back from the wasteway to the northern part of the lot on its present location, facing the canal. Without discussing the description in the various deeds, it was incumbent on appellant to show her southern line, which was defendant’s northern line, and, assuming the wasteway was the line, there was no evidence of its location or of any encroachment on her lot that would sustain an award of any part of the land. The wasteway was described as a ditch or dyke to carry water from an upper to a lower level; it ran at right angles with lot No. 42, while defendant’s wall cut the lot diagonally. Plaintiff places the distance at seven or eight feet on the east side but cannot give any distance in the center or at the west side. The testimony of Seitz is depended on to show encroachment, and we quote it in full: “Q. Do you know where that wall of the Pennsylvania Railroad Co. is at the present time? A. I do. Q. How far is that from the wasteway or from where the wasteway was formally located? A. Well,
Fullerton, plaintiff’s witness, who has known the properties during and since the canal days, testified: Q. “How far north of the wasteway would the north side of the wall be from the edge of the wasteway? A. Well, the whole thing would be on it, but I could not tell you exactly the amount of feet,” — indicating that the wall was built on the wasteway. It appears the wall was 123 feet from Market Street, the ground between the lock and the wasteway was 25 to 30 feet, and, if allowance was made for the width of the wall of the lock, the width and walls of the wasteway and the ground between, it would tally very closely with the measurements given by the engineer as to land now occupied by the railroad company. Plaintiff, however, does not defi
The judgment is affirmed.