October 24, 1930.
January 30, 1931.
Ejectment — Adjoining properties — Encroachment — Fence — Burden of proof.
In an action of ejectment to determine the ownership of a strip of ground, the evidence disclosed that the plaintiffs and defendants owned adjoining lots and that for more than thirty years the plaintiffs' lot had been bounded on the side towards the defendants by a fence five feet in height. The defendants removed the original fence and built a new one. The plaintiffs alleged that the new fence was constructed on their land, but the defendants averred that the fence as relocated did not encroach on the plaintiffs' property. The case was submitted to a jury and a verdict was rendered in favor of the plaintiffs. On a motion for judgment non obstante veredicto the defendants alleged that the plaintiffs had not shown at the trial that the possession of the strip by the plaintiffs and their predecessors was adverse and hostile from its inception, or that there had been continuous possession and claim of title. It was also averred that the possession of the plaintiffs and their predecessors at the beginning might have been permissive and that the encroachment, if there was one, was so slight that the defendants and their predecessors must be excused from not noticing it.
In such case there was sufficient evidence to sustain a verdict for the plaintiffs and the defendants' motion for judgment non obstante veredicto was properly refused.
No act could be more overt, or could more emphatically assert a claim to land, and a denial of the title of all others, than the enclosure of it. Standing alone this is ample evidence of a hostile, adverse taking and holding of the land.
Appeal No. 305, October T., 1930, by defendants from judgment of C.P., No. 4, Philadelphia County, March T., 1929, No. 347, in the case of Jozef Laskowski and Julia Laskowski v. Joseph Raucheisen and Margaretta Raucheisen. Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Ejectment to determine ownership of strip of land. Before FINLETTER, P.J.
The facts are stated in the following opinion of the court below:
The action is in ejectment to determine the ownership of a strip of ground, ninety-five feet long, seven inches wide at one end, and four feet two inches at the other. This the plaintiff claims by adverse user.
The two properties of the parties front on Edgemont Street, plaintiff's being No. 3054, and defendant's some fifty feet in front on that street, to the east.
For the last thirty years, and more, plaintiff's lot has been improved by a dwelling house, and bounded on the side towards defendant by a five-foot high fence.
The fence ran in a straight line, parallel with the side of the house from the street to a back fence. The existence of the side fence in this position for thirty years is conceded by the defendant.
Recently the defendant removed the original side fence, and built a new one, which encroached, according to the plaintiff, four feet two inches, and according to the defendant about three feet, upon plaintiff's lot, as defined by the old fence.
The location of the original fence, before it was removed by defendant, was fixed by the testimony of the plaintiff, who, while the indications of its position were still evident upon the ground, measured the space between the old and new fences.
Her testimony was corroborated, in a general way, by all the previous owners of the property; and, to a certain extent, by the defendant himself.
There is no dispute about the fact that the fence had been where it was when defendant removed it, for over thirty years. The defense however is: That the possession of the plaintiff's predecessors is not shown to have been adverse and hostile at its inception; that it may have been permissive, and that it was the duty of the plaintiff to show the first, and negative the second fact.
We quote from defendant's brief: "There is no evidence by whom, or for what purpose, the fence was erected," and that, therefore, "the plaintiff's case is without evidence of a hostile entry and adverse disseisin." "There is no evidence that it was not with the permission of the then owner." Defendant refers us to Johns v. Johns, 244 Pa. 48, and relies upon the following phrase in the opinion: "The burden is always upon the party claiming by adverse title to show when his adverse holding began." From this he argues that the plaintiff in the instant case has failed in her proofs, because she has shown only the existence of the adverse possession for thirty years. It would be a logical conclusion from this premise that a party in possession from time immemorial would not have established title, because he had not shown the circumstances of the original entry. Evidence of an adverse holding existed of course during the whole period that the fence was there.
The case cited has no pertinency because the court, when it used the phrase quoted by defendant, was discussing the possession of a party which was conceded to have been at first permissive. The court held (as was to have been expected) that there must be proof of the time when the permissive possession ended and the adverse began, for, said the court, without an initial point established there can be no telling whether adverse possession continued for the statutory period.
Again the defendant argues that possession may have been permissive at the beginning, and that "there is no evidence that the plaintiff's predecessors invaded intentionally, and with a purpose of asserting claim of title adversely to the orginal owner."
No act could be more overt, or could more emphatically assert a claim to the land, and a denial of the title of all others, than the enclosure of the lot. Standing alone this is ample evidence of a hostile, adverse taking and holding of the land. If the possibility, suggested by the defendant, were the fact, to wit, that the occupation was permissive, the burden was upon the defendant to prove it. In the instant case it is not even asserted as a fact, but only argued as a possibility.
Defendant also argues that "continuous possession and claim of title" has not been shown. He bases this upon a loose statement by one Stoebenau that the lot was seventeen feet wide in front and rear. The phrase used was a careless estimate, which was contradicted by defendant's own testimony. There was no dispute about the lot being seventeen feet wide in front, and the defendant conceded it was three feet wider at the rear.
Defendant also argues that the encroachment was so slight that the defendant and his several predecessors in title must be excused from not noticing it, and cannot therefore be charged with the effect of notice. It is sufficient to say that the encroachment was ninety-five feet long and four feet wide at one end. Land owners are not usually so blind to their interests as to pass over for thirty years so extensive a trespass upon their property.
There remains a subject not discussed at the argument, but which should be referred to, and that is the dimension of the disputed land at the rear of the lot. We have said that the plaintiff testified that she measured the space between the fences, while there was yet evidence on the ground of the location of the old fence. She stated that the space was four feet wide.
The surveyor testified that the point where the fence met the rear fence and the point where it met the street front were pointed out to him by the plaintiff, and that he ran his line from point to point. This showed the rear dimension to be four feet two inches long, and not four feet, as measured by the plaintiff. The discrepancy is not between the plaintiff and the surveyor, but between the plaintiff's measurement of the distance and her indication of the point on the back fence, which she saw. She is much more likely to be accurate in what she saw, than in her measurement, and the surveyor more likely than she to be accurate in measurement. The jury evidently thought so, for they took the surveyor's figures.
The rule for judgment is discharged.
Verdict for plaintiffs and judgment entered thereon. Defendants appealed.
Error assigned was the refusal of defendants' motion for judgment non obstante veredicto.
Louis Wagner, for appellants.
Walter Thomas, and with him Joseph Ryszeleski, for appellee.
Argued October 24, 1930.
Defendants appeal from a judgment for the plaintiffs in ejectment. We have carefully considered the record in the light of the arguments and briefs presented and are of opinion that every thing that need be said in affirming the judgment for the plaintiffs appears in the opinion of the learned President Judge of the court below which is now adopted as the opinion of this court.