Paschall v. Fels
| Decision Date | 12 October 1903 |
| Docket Number | 74 |
| Citation | 56 A. 320,207 Pa. 71 |
| Parties | Paschall v. Fels, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 27, 1903
Appeal, No. 74, Jan. T., 1903, by defendant, from decree of C.P. No. 2, Phila. Co., June T., 1902, No. 2, on bill in equity in case of Emily Connell Paschall v. Joseph Fels. Reversed.
Bill in equity for an injunction. Before WILTBANK, J.
Plaintiff in her bill averred as follows:
1. That she was the owner of a lot of ground on the northeast side of a sixty feet wide street laid out by George Connell, and called in the act of assembly approved February 13, 1869 "Sixty-first street," and at the distance of 177 feet northwestward from the northwest side of Kingsessing avenue, containing in front on said Sixty-first street, sixty feet, and extending northeastward between lines parallel with Kingsessing avenue 166 feet, six inches -- the same being conveyed to her by Elizabeth Connell -- "Together with the free use and privilege of said sixty feet wide street called Sixty-first street, in common with all other owners tenants, or occupants of lots bounding thereon, at all times hereafter forever." She also alleged that she was the owner by virtue of a deed from the same grantor of the lot between the one above described and Kingsessing avenue whose southwestern boundary was the said Sixty-first street.
2. That the lots were sold according to a plan made by different persons and the said Sixty-first street was laid out and opened by them and that the general assembly of the commonwealth of Pennsylvania confirmed the plan of Sixtieth and Sixty-first streets at this place.
3. That the city of Philadelphia placed this section of the said Sixty-first street on the city plan and that it in September, 1884, removed that part of said Sixty-first street from the city plan between Kingsessing avenue and Springfield street which included that portion of said Sixty-first street on which plaintiff's lots abutted.
4. That from the time of the grant by Elizabeth Connell in June, 1875, to the plaintiff of the lot first described above to the present time, a period of twenty-seven years, the plaintiff had occupied and used in an open, notorious, continuous and adverse manner said Sixty-first street as a roadway and driveway.
5. That the defendant had disregarded the plaintiff's right to the use of the said Sixty-first street and had entered upon the said Sixty-first street and proceeded to erect and maintain a fence and gate along and across the entire front of said Sixty-first street and had threatened to close and keep closed the said gate and to permanently occupy and use said sixty feet wide strip.
Complainant prayed as follows:
(a) That the defendant be compelled to remove said fence and gate and be enjoined from re-erecting the same.
(b) That the defendant be enjoined from interfering with the plaintiff's use and occupation of Sixty-first street.
(c) That the defendant be restrained from interfering with the plaintiff in the event of her erecting a building fronting on said Sixty-first street and looking to the use of said Sixty-first street.
(d) That a decree should be entered that the plaintiff had the right to the use of said Sixty-first street of the width of sixty feet to Chester avenue as a means of ingress and egress to her lots and that she had the right to erect buildings on her lot fronting on said Sixty-first street with the right to use said Sixty-first street.
The answer of the defendant was briefly as follows:
1. It admitted the averments in the first paragraph of the plaintiff's bill.
2. It admitted the averments in the second paragraph of the plaintiff's bill as to the lots being sold according to plans and the confirmation of the plan by the act of assembly, but it denied that said Sixty-first street was opened.
3. It admitted the averments of the third paragraph of the plaintiff's bill.
4. It denied the averment in the fourth paragraph of the plaintiff's bill that she had used and occupied the said sixty feet wide strip of land in an open, notorious, continuous and adverse manner as a roadway and driveway, and averred that the defendant and the prior owner of his title for more than twenty-one years had had exclusive, actual, visible, peaceable, continued, uninterrupted, adverse, open, notorious and hostile possession of said strip and had maintained the fence and gate complained of for that length of time and that the plaintiff had abandoned, surrendered and lost her alleged right to use said strip.
5. It admitted that the defendant had disregarded the title and right of use of the plaintiff of, in and to said strip, and that he did persist in going to and fro over the said strip and he denied that he had erected the gate and fence complained of, and averred that it was erected by his grantor and maintained for more than twenty-one years. It admitted that defendant determined to close and keep closed the gate and occupy said strip to the exclusion of plaintiff.
At the trial the court admitted, under objection and exception, testimony of complainant and her husband as to matters occurring prior to the death of Elizabeth Connell, the common grantor of plaintiff and defendant.
The court entered a decree granting the relief prayed for by the bill.
Errors assigned were (1, 2) admission of testimony of plaintiff and her husband; (22) decree of the court.
The argument of appellee, that the assignment of error to the ruling on the admission of the evidence of plaintiff, ought to be disregarded because not in accordance with rule No. 31 of this court, has been met, by proper assignment with leave of court, a copy of which has been appended to appellant's paper-book. The decree of the court below is reversed and it is directed that a rehearing of the issue be had in the court below.
Dimner Beeber, with him J. Levering Jones, for appellant. -- Plaintiff was incompetent: Karns v. Tanner, 66 Pa. 297; Arthurs v. King, 84 Pa. 525; Chase v. Irvin, 87 Pa. 286; Hess v. Gourley, 89 Pa. 195; Crothers v. Crothers, 149 Pa. 201; Baldwin v. Stier, 191 Pa. 432; Robbins v. Farwell, 193 Pa. 37.
It is clearly established that where the husband or wife is incompetent under the act of 1887, the wife or husband is also incompetent: Bitner v. Boone, 128 Pa. 567; Sutherland v. Ross, 140 Pa. 379.
Henry A. Hoefler, with him William Grew, for appellee.
Before MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.
In June, 1875, Elizabeth Connell conveyed by deed to her daughter, this plaintiff, a lot on the northeast side of a plotted but unopened street, 177 feet northwest of Kingsessing avenue, in the city of Philadelphia and parallel with the avenue 166 1/2 feet, with the further privilege of the free use of a sixty feet wide street, called Sixty-first street, in common with all other owners and tenants of lots abounding thereon forever. The lots were sold according to plots made and recorded. In December, 1876, she conveyed to her daughter another lot embracing all the ground between the first lot and Kingsessing avenue and bounded on the southwest by Sixty-first street; but this deed granted no such privileges on Sixty-first street as did the first deed. Soon after taking possession of her lots the plaintiff planted a close hedge along the entire line on Sixty-first street, except for fifteen feet at the King-sessing end where there was a passage through for persons and vehicles; plaintiff ever since she took possession dwelt in a house erected on the two lots; her mother lived on her own property several hundred feet off, from the date of the deed until the mother's death in September, 1899. Through the opening in the hedge the mother and daughter visited each other passing through gates and over a road which defendant alleges were maintained by the mother and himself on the mother's property, up to the time of filing this bill, more than twenty-one years after the deed to plaintiff. Plaintiff filed her bill to compel the removal of the gates. The defendant, who is a lot owner opposite plaintiff, averred that Sixty-first street had never been opened as a street; that he and contiguous lot owners had been in open, continuous adverse possession of it for more than twenty-one years previous to the filing of the bill; that whatever privileges plaintiff might have claimed on the street under the deed from her mother had been abandoned by her for more than twenty-one years by maintaining a closeset hedge along Sixty-first street on the line of her property which effectually...
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