Roe v. Wilbur

• Decision Date: 16 March 1868
• Citation: 57 Pa. 406
• Parties: Roe <I>versus</I> Wilbur.
• Court: Pennsylvania Supreme Court

57 Pa. 406

Roe versus Wilbur.

Supreme Court of Pennsylvania.

March 9, 1868.

March 16, 1868.

March 9th 1868.

Before STRONG, READ, AGNEW and SHARSWOOD, JJ. THOMPSON, C. J., at Nisi Prius

Error to the Court of Common Pleas of Susquehanna county: No. 6, to January Term 1868.

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W. H. Jessup, for plaintiff in error, cited 6 Bac. Abr. 566; 3 Lev. 209; 2 Bulst. 268; Addleman v. Way, 4 Yeates 219; Torrence v. Irwin, 2 Id. 210; Mather v. Trinity Church, 3 S. & R. 517; Greber v. Kleckner, 2 Barr 291; Hole v. Rittenhouse, 1 Casey 491; King v. Baker, 5 Id. 200; Shoenberger v. Baker, 10 Harris 404.

R. B. Little, for defendant in error, cited Wright v. Guier, 9 Watts 172; Criswell v. Altemus, 7 Id. 580; Burns v. Swift, 2 S. & R. 439; Adams v. Robinson, 6 Barr 271; Hole v. Rittenhouse, 1 Casey 494-5-6; Hughes v. Stevens, 12 Id. 320; Ewing v. Alcorn, 4 Wright 500; Altemus v. Trimble, 9 Barr 232; King v. Baker, 1 Casey 186; s. c. 5 Id. 206; 1 Chit. Pl. 177.

The opinion of the court was delivered, March 16th 1868, by AGNEW, J.

At the trial the defendant attempted to defeat the plaintiff's action on the ground that he was in the actual possession of the locus in quo. The judge denied the defence, stating that Marvin, under whom he claimed, had improved upon appropriated land, and that the woodland where the trespass was committed being vacant land of the Commonwealth, his possession could not be extended over it, by claiming to a certain boundary, and using the land for wood and making sugar. In argument here it was denied that Marvin was upon appropriated land; but the fact clearly appears in the testimony of Benedict, Marvin and Boyle, that he was by contract upon one of the Drinker or Biddle tracts, as the lands there are called. As remarked by Coulter, J., in Henry v. Henry, 5 Barr 249, many things pass on the trial of a cause as admitted, and we cannot impute a wilful misstatement to the judge below, in the absence of any fact disclosed by the evidence to impugn or contradict what he has stated. The fact being as thus understood, the judge was correct in his conclusion. It was said by C. J. Tilghman, in Graham v. Moore, 4 S. & R. 471, as early as the year 1818, that if the proprietor of a surveyed tract passes over his line and cuts wood upon the vacant land of the Commonwealth, so far from acquiring a right to the vacant land, he is to be considered a trespasser. Of annual entries to tap sugar-trees and boil the sap, it was said, in Adams v. Robinson, 6 Barr 272, that they constitute rather a succession of trespasses than an actual permanent occupancy of the ground. It is only when such acts are done within the boundaries of a man's own tract, whether claimed by settlement or survey, or by an elder or a junior title, they can be used as the evidence of such possession as farmers usually take of their woodland: 6 Harris 377; 8 Id. 163. The locus in quo being vacant land, and not in the actual possession of the defendant, his defence failed. According to numerous decisions, he could acquire no title by making and claiming to a boundary taking in the adjoining vacant land of the Commonwealth. It...