McCullough v. Seitz

Opinion by Porter, J., The plaintiff seeks to recover damages for injuries alleged to have been sustained by his farm by a discharge of water upon it from a living spring, and through a drain located upon the defendant’s adjoining land, and by the diversion through said drain of the natural flow of the surface water. The plaintiff produced evidence tending to establish that the natural flow of the water had been changed through the’construction by the defendant of the drain in question, about the year 1884 or 1885. The defendant replied to this by producing evidence that the water flowed in its natural course, that there had been no change in the drain since the time he acquired title, and that it had been maintained in its present position and condition for more than twenty-one years prior to the commencement of this action. The action was commenced August 19, 1898. The defendant asserted a right to have the water flow in its present channel, acquired by twenty-one years continuous adverse user prior to that date. The court submitted the question arising under the statute of limitations to the jury, and there was a finding in favor of the defendant. The first assignment of error, “ That the court erred in permitting counsel for the defendant to repeatedly ask John Sener, his own witness, leading questions,” is without merit. We have printed in connection with this assignment four pages of questions and answers, which the plaintiff permitted to proceed without objection. The plaintiff having permitted the examination to proceed in this manner without objection, it was not a case requiring the interference of the court below. The only question to which an objection was overruled by the court and an exception taken by the plaintiff was the last one [463] printed in connection with the specification of error: “Q. Was or was not this drain there when John Seitz moved there ? ” The specification as printed in the paper-book shows that the court overruled an objection to the question, to which ruling an exception was noted, but the appellant does not print in connection with the specification of error what, if any, testimony was given under the exception. The remaining specifications of error relate to the application of the statute of limitations under the evidence in the case. The plaintiff contends that, as against him and his brothers and sisters whose title he has acquired, the statute did not begin to run until the death of John McCullough, oh February 8,'1884. This contention is founded in the nature of the estate which plaintiff and the other children of John McCullough took under the deed of Samuel McCullough and wife to Hugh Y. Brady, his heirs and assigns, in consideration of the sum of $1.00, and the uses and trusts therein expressed, dated May 8, 1847, the material provisions of which are as follows : “ Provided, however, that the said Hugh Y. Brady and his heirs shall hold, possess and enjoy the aforesaid real estate in trust for the following uses and purposes, to wit: the rents, issues and profits of the said real estate shall be applied annually to the maintenance and support of the wife and child or children of John McCullough, including the children if any that may hereafter be born as well as the child now born, during the life of the said J ohn McCullough, and at the death of said John McCullough, the rents, issues and profits aforesaid shall be applied annually to the maintenance and support of the widow of the said John McCullough, should he leave a widow surviving him, and to the maintenance and support of the children of the said John McCullough during the life of such widow and at her death the aforesaid real estate to vest in fee simple in the then surviving children of the said John as tenants in common, and in default of children living at the death of said widow the aforesaid real estate to vest in fee simple in the heirs of the said John, agreeably to the intestate laws of Pennsylvania. But should the said John die leaving children but no widow surviving him, then the aforesaid real estate to vest in fee simple in his surviving children aa tenants in common. And should the said J ohn die leaving neither widow nor chil [464] dren surviving him then the said real estate to pass to and vest in fee simple in the heirs at law of the said John agreeably to the intestate laws of Pennsylvania.” This deed, so far as the questions material to this ease are concerned, interprets itself. The legal estate in fee was vested in Hugh Y. Brady, and the provisions of the trust as to who should take the rents, issues and profits, during the life of John McCullough and that of his widow in case she survived him, left nothing to construction. The grant of the equitable estate was not to the wife for the support of herself and children, nor was it to her for life, with remainder to her children, and the estate which the children acquired under the terms of this grant was essentially different from those considered in Wolford v. Morgenthal, 91 Pa. 30; White v. Williamson, 2 Grant, 249, and Hague v. Hague, 161 Pa. 643. This deed fixes the time and manner in which the rents, issues and profits are to be distributed. They are to be applied “ annually to the maintenance and support of the wife or child or children of John McCullough, including the children, if any, that may hereafter be born, as well as the child now born, during the life of the said John McCullough, and at the death of the said John McCullough, the rents, issues and profits aforesaid shall be applied annually to the maintenance and support of the widow of the said John McCullough, should he leave a widow surviving him, and to the maintenance and support of the children of the said John McCullough during the life of such widow.” We have here an express provision for an “ annual ” application to the maintenance and support of the wife and children, and that the children shall participate in the enjoyment of the rents, issues and profits Ci during the lifetime of such widow.” This grantor left nothing to inference, the equitable life estate vested in the wife and child living at the date of the grant, which expressly provided that that estate should open to let in after-born children. Whether, in case of the death of the wife, the estate would have opened to let in a future wife, who subsequently became a surviving widow, it has not become necessary to consider. The plaintiff had from the day of his birth title to an equitable estate in this land, which gave him the right of present enjoyment of its rents, issues and profits, and the same is true of the brothers and sisters [465] whose deeds have given him title to the entire tract. The only effect of the death of the wife during the lifetime of John McCullough was to increase the share of each of the children in the rents, issues and profits. The plaintiff and his grantors were, after the death of their mother in 1882, seized and in possession of the entire equitable life estate, dependent upon the life of John McCullough, but the death of the mother did not change the character of the estate, although each child became entitled to a larger proportion of the revenue. When John McCullough died, in 1884, the legal and equitable titles coalesced, but the land was the same in which the plaintiff and his grantors had for many years an equitable interest which entitled them to a present enjoyment of its rents, issues and profits. We do not deem it necessary to consider whether the estate of the children in the remainder, dependent upon the life of John McCullough, was contingent or vested. Whether the ultimate remainder was contingent or vested, the plaintiff and his brothers and sisters whose interests he has acquired, were at the time the statute began to run seized of an equitable estate in the land which gave them, either by themselves or their trustee, the right of present possession, and also the rig] it to recover that possession as against an intruder, and they might have compelled the trustee to enter if necessary to bar the statute: Stump v. Findlay, 2 Rawle, 168; Findlay v. Riddle, 3 Binney, 139; Baldridge v. McFarland, 26 Pa. 338; Smilie v. Biffle, 2 Pa. 52; Maus v. Maus, 80 Pa. 194; Warn v. Brown, 102 Pa. 347. The statute having commenced to run against the equitable title of the plaintiff would continue to run as against any estate in remainder which had in him been vested by the grant upon which the whole estate depended. The. judgment is affirmed.