Andrews v. Kissinger

Opinion by Kephart, J., Plaintiff brings, this action of ejectment to recover twenty-two inches of ground from the defendant. Both parties claim under a common source of title. In 1879 the defendant’s predecessor in title secured a deed from [602] the owner of the entire piece of ground, which deed contained the following calls: “Thence......fifteen degrees and a quarter west thirty-nine feet to a post, and thence by a line through the center of a pump......,” and also contained the following reservation: “It being reserved that the pump and well situate on the line of the part of the lot hereby conveyed and that retained by the grantor thereof, is to be forever owned in common by the owners of the two parts, to be by them mutually used......” The plaintiff’s title, through the same source, out of the same' owner, contained this language: “Northward .— -. .twenty-five feet (more or less) to a post; thence eastward and by a line through the center of a pump,” and the following stipulation: “The pump and well situated on the line and part hereby conveyed, and that heretofore sold to Ida Cecilia Hall, now deceased, is to be forever owned in common by the owners of the two, and to be by them mutually used____” When the survey was made of the defendant’s portion of the land sold to him, the call of thirty-nine feet would not reach a “line through the center of a pump,” and the plaintiff’s deed being for twenty-five feet, more or less, was continued to meet the actual measurement of the defendant’s thirty-nine foot line, which included twenty-two inches of land claimed by defendant. This action of the plaintiff’s gave rise to the present action of ejectment. Plaintiff contends that the line through the center of the pump had been lost as a monument if it ever existed, and that the geometrical lines in the deed should control the boundaries of land owned by the defendant. The main question, therefore, was the location of this pump, or the line through the center of the pump. On this the court charged the jury as follows: “The pump that was then in the well has been described, and there has been no evidence produced to show just where it is located. So that there is no monument on the ground, and the deed must prevail, and as that deed calls for a line about two feet north of where the fence now stands, it is the line [603] in the deed of both these parties, and the paper title to this two feet of ground, of twenty-two and one-fifth inches, is in the plaintiff. In other'words, the deeds allow the ground in dispute here to the plaintiff.” After careful examination of the testimony we are satisfied that the learned court committed error in so holding. This land, as stated above, was originally a full lot, and when the grantor sold off the first portion of it to the defendant, he selected the pump as a monument through which a line was run, which line was to be the southern line of the defendant’s property. A reservation carefully providing for the use, by the owners, of a well located on either side of this line, secured to both pieces a water supply. The fence was in existence in 1879, when the deed was made, as was an old fashioned pump about ten inches in diameter. The pump had been taken down some time prior to the day of trial, but this fact would not deprive the defendant of the benefit of his grant if the existence and location of this pump as it was in 1879 could be established by competént evidence. “The courses and distances in a deed give way to the boundaries found upon the ground, or supplied by proof of their former existence, when the marks or monuments are gone”: Morse v. Rollins, 121 Pa. 537. This evidence becomes admissible to explain an ambiguity which, as we read the deed, does not appear in the description. It is, however, a latent ambiguity. The parol evidence showed a mistake when the unambiguous description was applied to the supposed monument on the ground. It is evident that the thirty-nine feet called for was short of the distance intended to be given and if that monument can be established, it, of course, would control: Pringle v. Rogers, 193 Pa. 94. To establish theTocation of the monument now gone, we have testimony that the fence as it existed in 1879 is practically the fence as it exists to-day in its present location. This statement is followed by the testimony of many other witnesses who, from 1880 to the [604] time the old pump was destroyed, fix this same fence as centering this pump. The logical deduction from this evidence would be that the fence as it exists at the present time was the “line through the center of a pump.” It was not necessary to establish this fact beyond a reasonable doubt: Rook v. Greenewald, 22 Pa. Superior Ct. 641. This evidence, if believed by the jury, was sufficient to establish the location of the pump at the time the deed was made, and that the fence now standing was the line in dispute. /' There is another light in which this testimony bears /forcibly in defendant’s favor. From the time the first / of these conveyances was made, more than thirty-five j .years ago, until the present plaintiff acquired the other I portion of this property, there were no disputes whatever j as to this fence being the line between the properties. I The common grantor, out of whom this title, sprung, | owned plaintiff’s part of the property for some time J after he conveyed to defendant’s predecessor. The fence 1 fixing this line was then in existence and regarded as ¡ such without complaint from this same owner. When j the ambiguity is discovered through a survey, and parol J evidence is introduced to carry out the grantor’s intenI tion, this testimony develops that all the owners since 1 the common owner, except this plaintiff, recognized this ¡ fence as controlling the line of their several holdings, j Their acts showing how they regarded and construed the 5 language in their deeds, continuing for a period of up- ! wards of forty years, should be conclusive evidence as Vto what was originally intended. ^"Tf any error was committed by the court below with respect to the claim of adverse possession and the court’s instruction to the jury théreon, the defendant cannot complain. He should present requests for specific instructions, on the law as he' views it, to the trial court, if he wishes the court to charge thereon. The court instructed the jury adequately on the law as it covered the facts as presented. The court did not err in sending out [605] the plaintiff’s plan with the jury. Such matters are necessary and helpful in arriving at a correct conclusion and within the discretion of the trial court unless that discretion be abused. The remaining assignments of error have been discussed in this opinion. The first assignment of error is sustained, the judgment is reversed, and a venire facias de novo awarded.