37 Pa. 41 | Pa. | 1860
The opinion of the court was delivered, by
— Judging of the amendment of the narr., by the cause of action set forth in the original count — and this is the only test — we think it was properly allowed. It was simply a statement of the same wrong done, as contained in the first count, to the right of way to which the plaintiff alleged he was entitled; with a slight difference in the description of the locus of the way, and without any special designation of the property to which it was claimed to be appurtenant. It is vain to contend that it is another and different road from that to which obstruction by the defendant was charged in the first count. The termini were the same — the general course of it, and the user alleged were the same, and so it was treated by the court, and must have been so, understood by the jury. The rule to be observed in granting or refusing amendments under our statute is, that the cause of; action be substantially the same, and within this limit, amendments intended to reach the merits of each respective case are liberally allowed; and this is the only limit applicable to amendments after an award and appeal. The cases bearing on this point, with these distinctive features, where amendments have been refused in cases of appeal, are to be found collected and reviewed by Mr. Justice Bell, in Schoeneman v. Fegely, 7 Barr
There was no error in the rejection of the testimony of Isaac Erstler, nor that of Lewis Demmy. The testimony of the former amounted to proof of no facts. It was but matter of opinion, by which he was not bound, as no one was injured by it — and the latter could not be called to contradict a witness about a matter to which the witness’s attention had not been previously called.
We have very carefully considered the other numerous assignments of error in the case, and find nothing to correct, or which requires much discussion or illustration. The case was left to the jury, under instructions in answer to the defendant’s 9th point, “ that a right by prescription could be acquired to a way over another’s land by proof of twenty-one years’ uninterrupted, adverse, or undisputed enjoyment or use of it, and that this was a question for the jury to determine from the evidence; that if the plaintiff had proved this, he was entitled to recover, if not, their verdict should be for the defendant.” The objection to this was that no such enjoyment had been established. There certainly was evidence on this point, evidence of a user by the plaintiff, and those under whom he claimed for thirty-five or forty years, by, along, and over the very ground in dispute. If the objection meant that it was not shown to have been adverse, the first answer is, that this was a question for the jury. Secondly, this would and ought to be presumed, from an uninterrupted user for twenty-one years and upwards, when it was not rebutted by showing a license or agreement so to use it: Worrall v. Rhodes, 2 Whar. 427. In such a case, “it comes,” said Lord Ellenborough, in Campbell v. Wilson, 3 East 300, “to the common case of adverse enjoyment of a way for upwards of twenty-one years, without anything to qualify that adverse enjoyment.” See same principle in Garrett v. Jackson, 8 Harris 331; Okeson v. Patterson, 5 Casey 22.
We see nothing wrong in this answer, nor in the portions of the charge on the same point on which error has been assigned. It seems quite manifest, from a perusal of the testimony, that
Judgment affirmed.
