Shaffer v. Lauria

• Decision Date: 23 April 1912
• Docket Number: 194-1911
• Parties: Shaffer v. Lauria, Appellant
• Court: Pennsylvania Superior Court

50 Pa.Super. 135

Shaffer v. Lauria, Appellant

No. 194-1911

Superior Court of Pennsylvania

April 23, 1912

Argued October 16, 1911 [Syllabus Matter] [Syllabus Matter]

Appeal by defendants, from judgment of C.P. No. 4, Phila. Co.-1909 No. 4,307, on verdict for plaintiff in case of Louis Shaffer v. Nicholas Lauria et al.

Ejectment for a strip of land in the city of Philadelphia. Before Audenried, J.

The facts are stated in the opinion of the Superior Court.

At the trial the defendant made the following offer:

Mr. Gorman: I offer in evidence the affidavit of James Benton Young, being affidavit filed in support of motion to dissolve injunction, in C.P. No. 2, June Term, 1883, No. 522. In that case the plaintiff was Michael McCarron and the defendant John H. Gehner, Michael McCarron being the predecessor in title of the plaintiff in this case, and John H. Gehner being the predecessor in title of the defendant.

Mr. Smyth: I object to the offer. Ruling reserved.

Mr. Gorman: I now renew the offer of the affidavit of J. Benton Young, made yesterday, and add to the offer that it is for the purpose of showing adverse possession of the premises in dispute in John Henry Gehner, the predecessor in title to the present defendant.

Objected to. Objection sustained and offer overruled. Exception noted for defendant by direction of the court.

Defendant presented these points:

1. If the jury believe from the evidence that defendants for a period of over twenty-one years last past have been in the exclusive, notorious, open and adverse possession by themselves and their tenants and their predecessors in title to the same to the exclusion of the plaintiff, Louis Shaffer, and his predecessor in title, the verdict should be for the defendant. Answer: Refused.

2. If the possession of the defendants with their predecessors in title, viz., Gehner, of the land in dispute was actual, open, continuous, exclusive and hostile for a period of over twenty-one years, the verdict should be for the defendant. Answer: Refused.

3. If Gehner (the predecessor in title of defendants and from whom they purchased) was in possession of the land in dispute at the time of the purchase by the defendant Shaffer his title under the statute of limitations had ripened into an absolute title in the fee of the land in controversy against McCarron, his predecessor in title, and the transfer of the land in dispute by McCarron to plaintiff, Shaffer, vested no title in plaintiff to that land, and the verdict should be for defendants. Answer: Refused.

4. Under the facts in this case the possession must follow the deed, and where no possession is given as in the transfer by deed from McCarron to plaintiff, no title vested in plaintiff to the ground in dispute. Answer: Refused.

5. If an owner of real estate remains passive while the boundaries of his land are invaded by an adverse claimant who asserted title thereto and therein, he is held to acquiesce, and the adverse claimant being the defendants and their predecessors in this case ripened in a title by possession by virtue of the statute. Answer: Refused.

6. It is immaterial whether the possession is held for the entire period of twenty-one years by defendants if the possession was continued from their predecessor and interrupted, when there is privity of estate by occupation and title between the successive holders. Answer: Refused.

7. The possession of Genner and complainants with their tenants, like the possession of an ancestor and his heirs, may be tacked one to the other to complete the twenty-one years and the statute will apply and protect such an estate. Answer: Refused.

8. If defendants were put in possession by Gehner, former owner, who was himself in possession of the land in dispute, and they entered and actually occupied the land in dispute, and remained in possession and occupying under a claim of title, whether such claim be by deed or otherwise, this constituted a valid, adverse possession by defendants and their predecessors in title the verdict should be for defendants. Answer: Refused.

Verdict and judgment for plaintiff. Defendants appealed.

Errors assigned among others were ruling on evidence, quoting the bill of exceptions; in giving binding directions for plaintiff; above instructions, quoting them.

William Gorman, with him Francis S. Goglia and John F. Gorman, for appellants. -- In the present case we had actual adverse possession by Gehner and his predecessor of a piece of land fenced in as part of our lot for over twenty-one years when Gehner transferred the possession to Lauria who entered, and this adverse possession continued through Cliber, Gehner's tenant, who became Lauria's tenant, for over twenty-one years before suit brought by plaintiff. It is settled that the tenant's possession is the possession of the landlord: Schwab v. Bickel, 11 Pa.Super. 312.

And therefore the possession of Fidel Klaiber from October, 1887, to November, 1890, as tenant under John Henry Gehner and subsequently under plaintiff, enures to the benefit of the latter; and John Henry Gehner having possession by his tenant delivered it to Lauria when he assigned the leasehold and at the same time delivered these premises over to the plaintiff with the tenant: Parker v. Southwick, 6 Watts, 377; Graffius v. Tottenham, 1 W. & S. 488; Cunningham v. Patton, 6 Pa. 355; Hughs v. Pickering, 14 Pa. 297; Overfield v. Christie, 7 S. & R. 173.

The affidavit of Young was admissible: Wertz v. May, 21 Pa. 274; Numbers v. Shelly, 78 Pa. 426; Viscount Lorton v. Earl of Kingston, 5 Clark & Fin. 269; Courtenay v. Hoskins, 2 Russ. 253; King of Hanover v. Wheatley, 4 Beav. 78; Wanner v. Sisson, 29 N.J.Eq. 141; Doe v. Sybourn, 7 T.R. 2.

G. Albert Smyth, for appellee. -- The affidavit was inadmissible: Walbridge v. Knipper, 96 Pa. 48; Keim v. Reading, 32 Pa.Super. 613.

The possession of one trespasser cannot be tacked to the possession of a subsequent trespasser so as to permit the subsequent trespasser to acquire title by adverse possession, unless there is some conveyance by the first trespasser to the subsequent trespasser, or the subsequent trespasser inherits under the first trespasser; that is, it is necessary that their possession be one and the same possession in order to give title: Schrack v. Zubler, 34 Pa. 38; Zubler v. Schrack, 46 Pa. 67; Moore v. Collishaw, 10 Pa. 224; Sawyer v. Kendall, 64 Mass. 241; Wade v. Lindsey, 47 Mass. 407; Colgan v. Pellens, 48 N.J.L. 27 (2 A. 633); Smith v. Reich, 80 Hun (N.Y.), 287 (30 N.Y.S. 167); Berkowitz v. Brown, 3 Misc. 1 (23 N.Y.S. 792); Doe v. Barnard, 66 E.C.L. 945; Dixon v. Gayfere, 17 Beavan, 421; Ross v. Goodwin, 88 Ala. 390 (6 So. 682); Lucy v. R. R. Co., 92 Ala. 246 (8 So. 806); Witt v. Ry. Co., 38 Minn. 122 (35 N.W. 862).

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

HEAD, J.

On the east side of Sixth street, immediately north of Queen street, in the city of Philadelphia, are three contiguous improved lots, known and numbered respectively 807, 809 and 811. In 1847 this entire property was owned by one William Shaw who died seized thereof. By his will he devised the corner property, No. 811, to his nephew, Thomas B. Shaw and his children, and particularly described it in the following language, to wit: " Being about twenty feet six inches on Sixth street and about forty feet on Queen street, the front and back lines to be the same width parallel with Queen street." In the same will he devised to another nephew the premises immediately north of the corner lot, as well as the then vacant lot still further north. By divers mesne conveyances the title to lot No. 811 has become vested in Lauria, the defendant, while the title to the remaining property adjoining it on the north has in like manner become vested in Shaffer, the plaintiff. In all of these conveyances the respective lots are properly described according to the boundaries mentioned in the will referred to and show no encroachment or overlapping by the one as against the other. As already noted, in the devises from the common ancestor, and in every conveyance since that date, the three lots are described as having the same depth, each extending from Sixth street eastward to the property line of a stranger in the rear. The corner lot, 811, has been continuously assessed in the name of the present defendant and his predecessors in title, while the remaining two lots have, during the same period, been assessed in the name of the plaintiff and his predecessors. During all of this time the payment of taxes followed the respective assessments.

Many years ago -- the exact date not being fixed by the testimony -- an outside privy vault and building were constructed on the northeast corner of the entire property as originally owned, to wit, on the northeast corner of lot 807, and the owners and tenants of the corner lot, 811, had access to this structure by a way along and across the rear ends of Nos. 809 and 807. It appears further that at some time a fence was constructed across 807 and part of 809, thus dividing to that extent the narrow way already referred to from the remaining portion of the lot. The brick building on 809 did not extend the full depth of the lot, nor even as far back as the line of the fence last referred to, and thus the open way at the rear of the two lots was irregular in shape, being considerably wider at the south than at the north end.

In February, 1910, the plaintiff began this action of ejectment to recover the possession of the strip of ground already referred to, being the rear end of his two lots. As he was able to show a continuous line of conveyances from the common ancestor in title down to himself, all of which embraced the...