Hudson v. Watson

Opinion by Beaver, J., When this case was heard about a year ago, 2 Pa. Superior Ct. 422, one of the assignments of'error was directed to a point presented by the defendant and to the answer of the court thereto. The point and answer were as follows: “ If the jury believe the evidence of Israel Watson, that the plaintiff agreed to abandon the road in dispute on the completion of the new road, the plaintiff cannot recover and the verdict of the jury must be for the defendant. That point is affirmed.” The inadequacy of the point was sustained for the reason that it did not affirm as a fact that the new road had been'completed. We' said then in reference thereto: “ The mere agreement between Hudson and Watson, even if actually made, would not be sufficient upon Avhich to base an' abandonment of the easement claimed by Watson, unless that agreement was'actually carried [460] into effect, and the jury should have been so instructed.” If the public road concerning which the agreement was made was actually opened, the agreement between the parties was then “carried into effect” and the abandonment of the easement claimed by Hudson could be enforced. This seems to have been clearly comprehended by the court in the general charge to the jury'; and,, if nothing further had been said upon the subject, no objection could be taken thereto. The plaintiff’s ninth point, however, goes much farther and, in affirming that point, the court fell into error. The answer of the court to this point constitutes the first assignment of error. The point and answer are as follows: “We instruct you that the mere agree-' ment between Hudson and Watson, even if actually made, would not be sufficient upon which to base an abandonment of the easement claimed by Hudson, unless that agreement was actually carried into effect, and to carry it into effect it was essential that Watson, the defendant, should have taken possession of the way or obstructed the road, under and in pursuance of the terms of the agreement.” The agreement, as claimed by the defendant, was that, if Watson, the owner of the servient tenement, refrained from interfering in any way with the opening of the public road which was the subject of negotiations, that then and in that event Hudson, the owner of the dominant tenement, would abandon the easement claimed by him. Watson was under no obligation, by reason of the terms of the agreement or otherwise, to obstruct the right of way claimed by Hudson. He might wish to keep it open for his own use or for the use of the public. He already had possession of the land over which the easement was claimed and that portion of the plaintiff’s point, therefore, which related to carrying the agreement into effect was erroneous and altogether misleading and should have been refused, as stated; or, the first part of the point could have been affirmed and the latter part relating to the manner in which the agreement was to be carried into effect, refused or modified. In order to carry the agreement into effect, it was' only necessary that the public road which was the subject of the agreement should be actually opened for public use. The first assignment of error is, therefore, sustained. If in that portion of the charge of the court to the jury embodied in the second assignment of error the court intended to [461] convey the impression that an easement can be gained by the use of a way with the consent and agreement of the owner of the land over which the same is used, it was erroneous. Mr. Chief Justice Lewis, in Okeson v. Patterson, 29 Pa. 22, clearly stated the law upon this subject: “ An uninterrupted adverse possession of land for the period of twenty-one years gives a title which is not to be defeated by a mere protestation of the owner. He must make an entry or bring an action within twenty-one years or his right is gone; so in the case of an easement over his land, uninterrupted enjoyment of it for twenty-one years adversely to the rights of the owner of the land gives a title which cannot be defeated by mere objections or denials of the right. He must bring an action or obstruct the enjoyment within twenty-one years from its commencement or his right to obstruct it is gone.” So, in Bennett v. Biddle, 140 Pa. 396, it was held that “ The right must not only have been enjoyed without interruption for twenty-one years but that enjoyment must have been adverse to the rights of the owner of the land, in order to give a title.” None of the other assignments of error are sustained. Even if the trial judge were mistaken in his recollection as to the name of the witness who testified as to Watson’s declarations in regard to the character of the road through his premises, as complained of in the third assignment, it would not he a reversible error. The name of the wdtness is not stated as a fact and, therefore, the question was practically left to the jury. As to the fourth, fifth, sixth, eighth and ninth assignments it is only necessary to say that two of the essential qualities of easements are that they are imposed for the benefit of corporeal property and that there must be two distinct tenements, the dominant to which the right belongs and the servient upon which the obligation rests: Washburn’s Easements and Servitudes (3d ed.), 1873, sec. 3. They do not attach, at least when claimed by prescription, to the person. The same particularity, therefore, in regard to the title of the dominant tenement is not necessary as in the case of an ejectment. If the occupier of the dominant tenement who laid the foundation of the right of way by prescription were there by a claim of right, as John Moore seemed to be, we think the necessary conditions of acquiring a right by prescription were fulfilled. Although the [462] evidence is not very explicit, lie would seem to have acquired title to the laud which he occupied as well as to the right of way, by possession of the one and use of the other, and this prior to the act of April 25, 1850. There was no error in the answers of the court to the first and second points of the plaintiff, as complained of in the eighth and ninth assignments. As to the seventh assignment, there is no attempt on the part of the plaintiff to recover for damages sustained by the public. The fact that the- public traveled the road referred to does not necessarily interfere with his right of way as claimed in his statement. As a matter of careful pleading, it would have perhaps been better to have omitted the statement as to the public but we cannot see that the statement of this fact interferes with the right to recover. It is, at the most, a bit of surplus-age which would have been stricken out by the court upon application. Being compelled to sustain the first assignment of error and also the second, if the construction put by the appellant upon the part of the charge of the court complained of therein is correct, as it seems to be, the judgment is reversed and a new venire awarded.