Metcalf v. Buck

• Court: Pennsylvania Superior Court
• Writing for the Court: HENDERSON, J.
• Citation: Metcalf v. Buck, 36 Pa.Super. 58 (Pa. Super. Ct. 1908)
• Decision Date: 20 April 1908
• Docket Number: 13-1908
• Parties: Metcalf, Appellant, v. Buck

36 Pa.Super. 58

Metcalf, Appellant, v. Buck

No. 13-1908

Superior Court of Pennsylvania

April 20, 1908

Argued March 3, 1908 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by plaintiff, from judgment of C.P. Wyoming Co.-1906, No. 139, on verdict for plaintiff in case of H. F. Metcalf v. Emma M. Buck.

Ejectment for land in Lemon township. Before Ferris, J., specially presiding.

At the trial it appeared that Dr. E. L. Dieffenderfer, in 1882, became the owner of a tract of land bordering on the shores of Lake Carey, and that he caused this land to be laid out in lots by T. A. Miller, a surveyor. Both plaintiff and defendant claimed under deeds from Dieffenderfer. The facts relating to the conflicting boundaries are stated in the opinion of the Superior Court.

L. E. Stearns, a grantee of a lot from Dieffenderfer, was called by the defendant, and the following offer was made:

Counsel for defendant offers to show by the witness upon the stand, and by other witnesses, that while Dr. Dieffenderfer was the owner of the land adjoining the lands designated by witness, that he pointed out to the witness the line to the owners and that some of them erected fences upon the lines so pointed out by him, among them being the line fence between lot No. 1 and lot No. 2, between lot No. 2 and lot No. 3, and between lot No. 4 and lot No. 5, and to show by the witness that at the time he did so there were stakes and monuments upon the ground corresponding with the location so pointed out by Dr. Dieffenderfer as being the location of the line between the lots then designated.

This for the purpose of showing that the line between the plaintiff and defendant, as indicated by the fence upon the ground, and between other lots, namely, between lots No. 4 and No. 5, is the true location between those two lots, and propose to show other monuments upon the ground indicating the division line between the lots referred to.

This is objected to by counsel for the plaintiff:

1. That declarations made by Dr. Dieffenderfer, as to the location of the division line between the lots conveyed, is immaterial, irrelevant and incompetent, and, further, that such declarations, if made, would be within the statute of fraud.

2. That any testimony as to stakes on the ground is immaterial, irrelevant and incompetent, unless it be shown they were put there by the surveyor at the time the plot referred to in the deed was made, and for the purpose of locating the division line of such lots.

The Court: I will take it as a designation by the grantor of monuments, as proposed to be shown by the witness, fixing upon the ground the lines described in the deed. It seems to me it is admissible for that purpose, and, perhaps, as an admission against interest by the predecessor in title. The objections are overruled and the evidence admitted; to which the defendant excepts and at his request an exception is noted and bill sealed.

Mrs. L. E. Stearns testified as follows:

" Q. Do you recollect of your husband building a fence upon the ground just north of the summer pavilion there?

A. Yes, sir.

Q. Do you recollect of seeing any stakes along there where that fence was built?

A. Yes, sir; where they built the fence.

Q. And they built the fence along where the stakes were?

A. Yes, sir."

Counsel for plaintiff renew the same objections which were made to similar testimony when Mr. Stearns was on the witness stand.

The objections to Mr. Stearns' testimony being as follows:

1. That declarations made by Dr. Dieffenderfer, as to the location of the division line between the lots conveyed, is immaterial, irrelevant and incompetent, and, further, that such declaration, if made, would be within the statute of fraud.

2. That any testimony as to stakes on the ground is immaterial, irrelevant and incompetent, unless it be shown they were put there by the surveyor at the time the plot referred to in the deed was made, and for the purpose of locating the division line of such lots.

The Court: The objection is overruled and the evidence admitted; to which the plaintiff excepts and at his request an exception is noted and bill sealed.

The court charged in part as follows:

[I am referring now to what I said a moment ago as to the contemporaneous construction of an instrument by the parties, and you may apply that principle in construing the act of Dr. Dieffenderfer and Mr. Stearns as to the location upon the ground of certain lot lines mentioned in the deed and in the plot of Miller.

In that connection we also instruct you as matter of law that where the courses and distances in a deed are in conflict with monuments upon the ground, the monuments upon the ground govern. They will control the location of the land. Monuments upon the ground are stakes or stones set for corners, trees marked for corners or for line trees, and natural objects called for as corners or to identify the line; and, in general, whatever is done by the surveyor in placing upon the ground the results of his survey, and where there is a conflict between the monuments upon the ground and the courses and distances in the deed, what the surveyor has done upon the ground is supposed to mark the true line and control the courses and distances.

In this connection you may, in trying to ascertain what monuments there were upon the ground, so far as this tract that was plotted by Mr. Miller is concerned, consider the testimony of Mr. Stearns, of Mrs. Stearns and of Mr. Knuppenburg, as to what was done between Dr. Dieffenderfer and Mr. Stearns and what was done pursuant to the survey as to the putting in of stakes. It is not my intention to attempt to detail all this to you as it was given by the witnesses, but briefly to refer to it.

You will remember the testimony of Mr. and Mrs. Stearns as to Dr. Dieffenderfer pointing out the line of Mr. Stearns' lot No. 1, including the triangle, and his testimony that the fence was built upon the line as so pointed out by Dr. Dieffenderfer, and that stakes were put there before the fence was built, and that the fence was built according to the stakes, and extended from the end of the stone wall near the pavilion on the lake shore up to Lake street, giving to Mr. Stearns the entire fifty feet of the triangle and the fifty feet rectangular lot, giving him, in other words, 100 feet, which he claims, and which is shown on the Miller map as the distance to be covered by that lot of ground.

Also you may take into consideration the testimony of the same witnesses as to Dr. Dieffenderfer pointing out to Mr. Stearns the line of lot No. 2, after the purchase by him of lot No. 1, and which he afterwards bought from Dr. Dieffenderfer, adjoining Mrs. Buck's land. You have the testimony of these witnesses as to the location of these lots by Dr. Dieffenderfer, on the ground, and as to the existence of stakes which were set there and had been there some years.

You will remember the testimony of Mr. Knuppenburg also as to the general staking out of that plot of lots. Also his testimony as to the location of the fences which were afterwards built upon the lines which had been staked out, and as to who did the staking out. As I recollect it, he states that Dr. Dieffenderfer and he thinks Mr. Miller, the surveyor, were present, and perhaps some other person, and that the stakes were driven where Dr. Dieffenderfer and Mr. Miller directed them to be driven.

There is testimony also that witnesses saw stakes driven at the lot lines on the lake shore.

Now there is other testimony given, not exactly contradicting that, but to the effect that the other surveyors did not see any stakes at all upon the land. I think Mr. Lathrop and Mr. Stone both say they did not see any stakes that bore any evidence of having been stakes placed there by the original surveyor, Mr. Miller. There were some stakes placed along Lake street, as conceded by Mr. Stone, but those were the only stakes which the plaintiff's surveyors testified they were positive of. Against their testimony is that of Mr. Knuppenburg, Mr. and Mrs. Stearns that stakes were placed there and that the fences were afterwards built upon the line marked by those stakes, and that those fences are still in that same location.]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were rulings on evidence, quoting the bill of exceptions; portion of charge as above, quoting it.

Ernest K. Little, with him Bradley W. Lewis, for appellant. -- The parol testimony of L. E. Stearns and others was irrelevant: Fuller v. Weaver, 175 Pa. 182; Borough of Birmingham v. Anderson, 40 Pa. 506; Airey v. Kunkle, 7 Pa.Super. 112.

Both Stearns and his wife are incompetent as witnesses: Paschall v. Fels, 207 Pa. 71; Karns v. Tanner, 66 Pa. 297; Arthurs v. King, 84 Pa. 525; Chase v. Irwin, 87 Pa. 286; Sutherland v. Ross, 140 Pa. 379; Reiter v. McJunkin, 8 Pa.Super. 164.

James Wilson Piatt, for appellee. -- In the event of a discrepancy between the courses and distances called for in the deed and the monuments on the ground, the monuments will control, even though no monuments are called for in the deed: Blasdell v. Bissell, 6 Pa. 258; Ogden v. Porterfield, 34 Pa. 191; Willis v. Swartz, 28 Pa. 413; Dawson v Mills, 32 Pa. 302; Burkholder v. Markley, 98 Pa. 37; ...