89 Pa. 47 | Pa. | 1879
delivered the opinion of the court, February 17th 1879.
At the outset, the plaintiffs assume that Allen’s defence was a parol license to enter upon the land and dig clay, without limit as to time or quantity. Upon this their argument is built, fortified by numerous authorities, demonstrating that the learned judge committed a series of blunders. There is no escape from this conclusion, if it be that Allen claimed an incorporeal hereditament — a mere right to take clay — resting upon an oral promise. Therefore, we pass at once to consider the nature of the defence, as set forth in the defendants’ offer of testimony, the receiving of which is assigned for error, namely, “ that defendant Allen was a tenant of Gerritt, for these premises, prior to conveyance to plaintiffs, for over twenty years; that the fact was well known to Sheets, and that he was in possession of these lots, under his lease, with the right to dig clay, before plaintiffs bought from his landlord.”
Instead of a mere license, the defendants put forward an actual
The plaintiffs raised and discussed some points not embraced in the assignments, upon which the court was not requested to charge, and these cannot now be considered. If error was committed, it must be shown by the record. For aught that appears, the court gave correct instructions in reference to the portions of land occupied for a highway, prior to vacation of Buck road in 1873.
Judgment afiirmed