Eifert v. Lytle

• Decision Date: 06 January 1896
• Docket Number: 80
• Citation: 33 A. 573,172 Pa. 356
• Parties: Ernest Eifert and Sarah J. Eifert v. H. M. Lytle and A. C. McCune, Appellants
• Court: Pennsylvania Supreme Court

33 A. 573

172 Pa. 356

Ernest Eifert and Sarah J. Eifert v. H. M. Lytle and A. C. McCune, Appellants

No. 80

Supreme Court of Pennsylvania

January 6, 1896

Argued October 16, 1895

Appeal, No. 80, Oct. T., 1895, by defendants, from judgment of C.P. Somerset Co., Dec. T., 1891, No. 39, on verdict for plaintiffs. Affirmed.

Trespass for cutting timber.

The facts appear by the opinion of the Supreme Court, and by the charge of the court which was as follows:

This is an action of trespass to recover damages for cutting timber trees which, plaintiffs say, stood on their land. The defendants deny the alleged trespass, while they admit the cutting of the timber in question and put at issue, claiming title to the land, saying the land and timber were their own. This puts on the plaintiffs the burden of establishing their ownership of the premises on which the alleged trespass is said to have occurred.

Nearly a hundred years ago, namely: on the 7th of July, 1794, a warrant was issued in the name of John Miller, on which a survey was made of four hundred acres and allowances in what is now Black township, of this county. The title to the land thus surveyed became vested in John Phillipi of G. on the 28th of March, 1843, who conveyed a portion of the tract to Jonathan Miller of M., and on the 6th of May, 1847, he conveyed the remainder to Jost J. Stutzman. The title of Jonathan Miller, after various conveyances, became vested in the plaintiffs for all the land Miller had acquired from Phillipi, and that of Stutzman became vested in the defendants to the extent of his interest. On paper the titles of the several parties are complete, the only matter of uncertainty is the true location of these two purparts of the original tract. The plaintiffs contend that when John Phillipi conveyed to Jonathan Miller he meant to make title to him of all that portion of the John Miller survey north of the stream called Ice's Run, which passes diagonally across the survey, because in describing that land he referred to it as all of the above described tract "that is situated on the north side of Ice's Run," "the said Ice's Run is to be the division line." But the deed also designates a line having the general course of the stream, but some distance from it, with the bearing N. 62 degrees 42' W. and a length of 279.1 perches. The defendants claim that the stream, though mentioned, was not adopted as the dividing line between the part conveyed and that remaining, but the one with the bearing N. 62 degrees 42' W. is the true line separating the portion sold by Phillipi from that retained by him.

The line of division as that was understood and fixed between Phillipi, the vendor, and his vendee, Miller, is the one which you are to seek to ascertain from all the evidence which in any measure throws light upon this inquiry. As it was then understood and settled by those parties it must remain. The deed is inconsistent in the fact that it refers to both Ice's Run and the other line mentioned for the northern boundary. It is said that they are not identical and cannot both stand. The question is, which shall yield? When a deed contains lines not run and marked on the ground, such lines must yield to a call for a stream or other natural or fixed boundary. We repeat that when a deed contains lines not marked upon the ground, such lines must yield to a call for a stream or other natural or fixed boundary. In such discrepancy, courses and distances give way to the call. But when a deed gives lines actually marked on the ground prior to the conveyance and so adopted by it, or marked at the time of the conveyance and corresponding therewith, they constitute the true survey and exclude the call for a natural or other fixed boundary. The landmarks made by a surveyor, if artificial, or adopted by him if natural, form the true boundary, and the courses and distances simply bend to the call.

The defendants say the line N. 62 degrees 42' W. was made for the purpose of dividing the Phillipi conveyance of Phillipi to Jonathan Miller; and they place on the stand, as you will recall, Robert Nicholson, who testified that he was 76 years of age; that when he was 23 years of age, now about 53 years ago, he accompanied the parties making a survey, and that Henry L. Holbrook, the surveyor, then ran the division line. You will recall his testimony and you will attach to it such weight as you think, under the circumstances, it is entitled to have. On the part of the plaintiff they say, in regard to this testimony of Nicholson, that the dates which he fixes are inconsistent with the facts, because taking 53 years from 1894 would carry him back to 1841, a period when, they say the title was not in Phillipi, who he states was one of the parties to the running of the line in the division of the tract; and if the title was not yet vested in Phillipi, it is not reasonable to believe he was there taking a part in the division of that survey -- he had nothing to do with it. On the side of the defendants it is answered, however, that that is such a circumstance as may be explained by the imperfection of memory, and that a variance of a few years is not to affect the testimony. You will determine what credit shall be given to that testimony, in view of the fact thus raised. [We may say here also, in passing, that some testimony was introduced with regard to his character. Now the testimony thus introduced does not destroy the witness it goes to his credibility. If what is said of him as to his confinement in the Western Penitentiary is true; if he was the identical Robert Nicholson who was shown by the record to have been convicted and sent to the penitentiary, that goes to his credibility, and it remains a question for you as to how far you shall believe a person thus convicted of a high crime; it does not destroy the witness; we say it does not take him out of the case, but it is to be considered in determining what weight shall be given to the witness.]

We are just now informed that the division line just referred to, N 62 degrees 42' W., goes with each end from a post, and there not being a living witness, cannot, of course, be counted, and would therefore not aid in establishing the date of its making.

Now, the plaintiffs assail the line thus claimed by the defendants, and say that it was a mere paper line, made in the chamber of the surveyor; a piece of chamber work made to ascertain the acreage of the tract conveyed, and that it was not intended to fix the division boundary at a place different from that previously mentioned in the deed, namely, Ice's Run. And they call two surveyors who express the opinion we have already stated, that the marks claimed for that line were of recent making.

There was also some testimony by a man named Klink, who says he was there when quite a lad and saw Henry L. Holbrook run the exterior lines, as we recall it, on several occasions, but does not say anything of his running the division line. The period to which Klink testified was, of course, years subsequent to the making of the deed by Phillipi to Miller -- we believe thirty-eight years ago.

Now, looking at this state of the case, the plaintiffs argue that the line claimed by the defendants as the division line is altogether too uncertain, and that it is not established as to age. You will observe that it is essential, in order that it may be treated as the division line in contemplation at the making of the deed from Phillipi to Miller, that the line should have existed at that time, and so the plaintiffs argue that it has no evidence of any origin anterior to the making of the deed, while the defendants claim that it has, and this is a question which you must determine.

Now, we repeat, if you are satisfied that the marks upon this line belong to a survey made before the deed of Phillipi to Miller, and was adopted by it, that is the true line of the division; but if at that time no line was there upon the ground, and no such line was in fact run upon the ground, then the natural boundary would prevail, because, as we have already said, in the absence of marks on the ground to show the survey, the natural boundary called for would control.

Something has been said about the declarations of former owners of these tracts. Now, the statements made by persons owning the land are always evidence tending to show the boundaries, but not conclusive evidence, unless in a case where they operate to raise an estoppel. There is no such thing in this case. The declarations referred to as having been made by different persons who at one time owned the properties, are only evidence to show how they considered the lines located, whether, on the one hand, Ice's Run was the place, or on the other, where defendants claim.

Now, if you shall find the line is as defendants claim, the plaintiffs cannot recover, because in that event the land in dispute belongs to the defendants, and not to the plaintiffs. But if you conclude that Ice's Run is the correct boundary, you will ascertain how much timber was cut by the defendants north of that stream, and determine its value; because in that event the plaintiffs are entitled to recover, and the next step for you to take would be to ascertain the damages done. And in doing that, the value of the timber is to be taken as it stood there in the trees on the ground; and it is to be taken unaffected by improvements made by the defendants, just as the plaintiffs owned it, unaffected by the building of any road into it, or any other improvements which defendants may have made. . . .

[Now in order that the defendants can relieve themselves of liability for cutting timber upon the land of the plaintiffs, if they did cut upon the land of the plaintiffs, through any acts or...