Brankin v. Phila., Newtown & New York R. R.

Opinion by Mr. Justice Simpson, In this action of ejectment, defendant appeals from a judgment for plaintiff, entered by the court below for want of a sufficient affidavit of defense, although no such pleading was legally required and none was filed. An answer was filed, as directed by the Act of June 7,1915, P. L. 887, as amended by the Act of June 12,1919, P. L. 478, which statute also says “that the court may, on rule, enter such judgment on the pleadings, in favor of either party, as it may appear to the court the party is entitled to.” Since the principles applicable to the two proceedings are, in this respect, substantially the same, we will consider the present appeal exactly as if the proper rule had been taken, and the judgment under review entered on it. That judgment is erroneous, however. In his statement of claim, plaintiff avers a record title in himself, through a deed to him, executed some twenty-three years before the suit was begun; but it also appears that the defendant railroad company is in possession of the land, and has been for more than fifty years, having located its track thereon in 1872 (or 1873), and since then continued in that user. He does not allege that the entry did not result from negotiations with the then owner of the property, save as may be inferred from his averments that no condemnation proceedings were had, *334 damages assessed or compensation paid, and from Ms bald statement, denied by defendant, that it was a mere trespasser. So far as concerns the present status of the case, it is ruled by Carter v. Ridge Turnpike Co., 208 Pa. 565, 567, where, after stating that no statute of limitations or adverse possession will bar a claim to recover compensation for land taken by a public service company, we said: “But, while this is true, there ds a rule of evidence with which the appellants have not complied. More than twenty years had elapsed before this equitable ejectment was instituted, and in it there can be no recovery unless the money, to enforce the payment of which it was brought, has not been paid. With a continuing right to collect the same, barred by no statute and defeated by no adverse possession, there is, nevertheless, the presumption, after twenty years from the time the right to the damages accrued, that they have been paid. The rule that, after the lapse of twenty years, mortgages, judgments and every species of security for the payment of money are presumed to be paid is unbending, universal and invariable......Notwithstanding the lapse of this time, the right to recover has not been extinguished, if, as a matter of fact, the damages have not been paid. But the rule of evidence to which even the Commonwealth is subject (Ash’s Est., 202 Pa. 422), is, that those acting only after twenty years must affirmatively show that fact. What would not have been a burden on them before the twenty years, becomes so thereafter; and what would have been required of the defendant before that time, it is not called upon to prove after.” No valid distinction exists between the two cases, because of the fact that there the action of ejectment was brought to recover damages for the land taken, while here it is to recover possession of the land itself; for, in each case, if payment was made, defendant’s possession was lawful, and, hence, if it is presumed to have *335 been made, as the foregoing quotation shows it is, necessarily the possession must be presumed to be lawful. We need only add that, as the difficulties of establishing the exact facts multiply with the passing of the years after the twentieth, so the legal requirements as to the character and extent of the proof necessary to overcome the presumption, must likewise multiply with the passage of those years: see Biddle v. Girard National Bank, 109 Pa. 349. There will be ample time to consider the other defenses set forth in the answer, when, if ever, plaintiff has successfully carried the heavy burden, above referred to, which lapse of time and delay in acting has cast upon him. The judgment of the court below is reversed and a procedendo awarded.