Stroud v. Prager

130 Pa. 401 | Pa. | 1889

Opinion,

Mb. Justice Williams:

' This was an action of trespass brought to recover damages for an injury to land, the bank of a small mill-stream. The defendant denied the title of the plaintiff, and set up title and actual possession in himself. The evidence shows that he had purchased a mill property from David B. Hawkins in September, 1856, by an agreement in writing, which .described the land' by reference to roads, buildings, and fences then on the ground. He wént immediately into possession. His deed was nót made until March, 1863, and when made did not adopt the description in the written agreement, but made a new one by courses and distances, containing fourteen acres. According to the description contained in the deed, the place of the alleged injury would be outside the lines of Prager’s ■ property. He alleged that he took possession under the articles, and in accordance with the description therein, and' had remained in possession openly, notoriously, and in hostility to all comers, from that time down to the time of trial, a period of more than thirty years. If this was true, he had a good title under the statute of limitations, without regard to the description in his deed.

For the purpose of putting his defence before the jury, he offered the article of agreement, to be followed by proof “ that the defendant entered into possession of the land mentioned in the article, and has held possession thereof openly, notoriously and continuously from September, 1856, until the present date.” This was objected to for the reason that the article of agreement was merged in the deed. The objection was sustained, and the evidence excluded. This might have been proper if the article had been offered for some other purpose, such as to contradict recitals in the deed; but it was offered as showing the boundaries of his possession when he was put in by his vendor; and he proposed to follow it by showing that his possession had extended to the same boundaries, notwithstanding the deed, down to the time of trial. The boundaries of this pqssession he alleged embraced the locus of the alleged trespass. If this was true, he had a perfect defence to the plaintiff’s action, and in determining the admissibility of the offer we must assume that it was true. If he had been, for over thirty years, as he proposed to show, in the open, notorious, and continuous possession of his mill property, by boundaries which inclosed the bank of the stream on which the alleged trespass had been committed, the plaintiff could not recover. If he had relied on his deed as a defence, he would have been concluded by the description it contained, but he did not. He said, in substance: “ My vendor sold this property to me, and described it in the contract by reference to roads, fences, and buildings that I could see. He put me in possession of the land so described, and I have remained in ■ possession ever since, according to the same visible boundaries, and those boundaries include the land in question.” This was a claim of title by possession independently of the deed, and the fact that he received a deed with a different description of the land from that in the agreement, and recorded it, did not prevent him from setting up such title.

This view of the subject sustains the second, fourth, and sixth assignments of error, and

The judgment is accordingly reversed, and a venire facias de novo awarded.