Lackawanna Lumber Co. v. Kelley
| Decision Date | 11 May 1908 |
| Docket Number | 255 |
| Citation | 70 A. 724,221 Pa. 238 |
| Parties | Lackawanna Lumber Company v. Kelley, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 16, 1908
Appeal, No. 255, Jan. T., 1907, by defendant, from judgment of C.P. Clinton Co., May T., 1901, No. 147, on verdict for plaintiff in case of Lackawanna Lumber Company v. Uriah Kelley. Affirmed.
Ejectment for land in Leidy township.
At the trial the court gave binding instructions for the plaintiff.
Verdict and judgment for plaintiff.
On a motion for a new trial HALL, P.J., filed the following opinion.
After full argument and careful examination of the testimony in this case the court is unable to say that there was any error in the former trial, nor has anything been presented from which we can conclude the possibility of a different result if a new trial were granted.
Alexander Kelley, the father of the present defendant, took a conveyance of 116 acres and twenty-two perches of land from Horace M. Bliss, June 25, 1839. His deed was recorded the next day and he went into possession some time thereafter. All of the land described in this conveyance lies upon the north side of Kettle creek, except a small portion in the southeastern corner which presents the general shape of a right angle triangle, the base or southern boundary of which extends east from the creek about sixty rods, the perpendicular running thence north about the same distance to a point where it strikes the creek again opposite the mouth of Hammersley's Fork, and the creek itself forms the hypothenuse or northwestern side of this triangle. The defendant claims that after his grandfather had gone into possession of the land described by the Bliss conveyance he discovered that about forty acres on his northern boundary was an interference with the land of one Daugherty, and consequently to this part of his conveyance his ancestor took no title, and that in order to make the deficiency good Mark Slonaker, who had a power of attorney from the plaintiff's predecessors in title, undertook to give him an equal amount of land on the south side of Kettle creek adjoining his former conveyance, and that one Solomon Bastress, a surveyor, ran out the lines of this tract and marked them upon the ground. In support of this contention he offered in evidence a power of attorney from William Williamson, trustee, dated November 10, 1843, more than four years after the date of the conveyance to Kelley, authorizing Slonaker to make and deliver written executory contracts or agreements of bargain and sale for the sale and disposal of certain lands, including the lands in controversy. It does not confer upon him any right to affect the title of his principal by any other act than the execution of written contracts or executory agreements of sale. That he did attempt to rectify the alleged mistake in the Kelley conveyance rests entirely upon the testimony of Jane Corbin a sister-in-law of Alexander Kelley, the original grantee, a woman now seventy-five years of age. She testified that she thinks she was twelve or thirteen years old when she heard a conversation between Mark Slonaker, Solomon Bastress and Alexander Kelley relating to the fact that Daugherty was finding fault with Alexander about his land and that Slonaker said "we will run on the other side and let Daugherty keep his land." After which she says, the three crossed the creek in a canoe carrying their surveying instruments and maps and went up the hill blazing the trees. And she says when they came back they stayed at her father's and she heard them tell her father that they had run Kelley's timber lot out. This statement of Jane Corbin's is followed by the introduction of a map drawn by Solomon Bastress and indorsed in his handwriting as follows The map itself, however, does not follow in any respect the courses and distances recited in the conveyance to Kelley referred to, but seems to be an attempt to relocate the lands so as to take in about forty additional acres on the south and to leave out about forty acres on the north which was included in the original conveyance. It appears that there are marks upon the ground south of Kettle creek made in 1843 showing lines which correspond generally with that portion of the Bastress map which shows territory south of the original conveyance to Kelley. In 1843 Jane Corbin was only eleven years old. To the additional forty acres included in the Bastress survey there was never any conveyance from the owners to Kelley. On the contrary, the owners conveyed this land to other parties in 1853, and from the year 1853 down to the present time the title to that portion of it which lies west of Turtle Point Run, which is the land in controversy in this suit, has been in parties other than those who held title to that portion of it lying east of Turtle Point Run.
Let it be clearly understood that there is no dispute as to lines and boundaries in this case. The location of the original conveyance to Kelley is admitted; some of the original corners are still upon the ground. Neither is there any question as to the location of the additional forty acres contained in the Bastress survey, but the defendant must sustain title to this, if at all, upon the ground that it was a parol gift of land followed by his entry thereon, under color of title and his subsequent maintenance of possession thereof, either by residence or cultivation within its lines continuously and openly for a sufficient period to establish a title in him by prescription. There was no such evidence in the case and no offer made by the defendant that would have covered this point if admitted. We are satisfied that if Kelley had entered upon any portion of this forty acre tract under color of title and had maintained possession thereof either by residence or cultivation, for a period of twenty-one years, it would have been sufficient to draw to him all of the land contained within this additional tract as shown by the marks upon the ground land including the timber, lying west of Turtle Point Run, now in controversy, even though such residence or cultivation had been on that portion of the tract lying east of Turtle Point Run which has been owned by other parties since 1853 and which is not involved in the present suit. But as we have said there is no such testimony and no such offer. The defendant it is true offered to prove that Kelley's widow received pay for certain timber which was cut on the Bastress survey...
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