Silliman v. William Whitmer & Sons

• Decision Date: 28 July 1899
• Docket Number: 1-1899
• Citation: 11 Pa.Super. 243
• Parties: Estella D. Silliman, Mary G. Rothermel et al. v. William Whitmer & Sons, Appellants
• Court: Pennsylvania Superior Court

11 Pa.Super. 243

Estella D. Silliman, Mary G. Rothermel et al. v. William Whitmer & Sons, Appellants

No. 1-1899

Superior Court of Pennsylvania

July 28, 1899

Argued February 14, 1899 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by Robert F. Whitmer et al., surviving partners doing business in the name of William Whitmer & Sons, from judgment of C.P. Union Co.-1896, No. 22, on verdict for plaintiffs.

Trespass. Before McClure, P. J.

It appears from the record and evidence that the plaintiffs, claiming to be owners of numerous tracts of unseated land, made a written contract with Lewis Rothermel, one of their number, and Albert Lichtenwalter, selling them all the timber growing on the said land, the same to be cut down and carried away within a period of ten years, providing for a certain quantity to be cut each year and the method of payment. The contract gave to Rothermel and Lichtenwalter the right to use all the lumber necessary for building tramways, roads, houses, sawmills and other improvements; also allowed $ 1,300, as an offset to timber, to be used in the construction of tramways on the lands. It appears also that there were some intervening tracks between the point of shipment and the land claimed by the plaintiffs over which the lessees or grantees owned and operated a tramway. Rothermel and Lichtenwalter constructed the tramway provided for in the agreement and prosecuted business and operated their tramway until March 9, 1888, when Lichtenwalter sold his interest to Rothermel by deed of that date. This deed purported to convey " everything owned jointly by Lewis Rothermel and Albert Lichtenwalter," and recited sawmill and all machinery, locomotive, houses, stables, offices, office fixtures, lumber trucks, tramway, tools, etc. This sale was consented to by plaintiffs in writing. Rothermel died directly thereafter on June 8, 1889, having by his last will and testament given to his wife, Mary G. Rothermel, one of the plaintiffs, all his property, and made her his executrix. Mary G. Rothermel resold to Albert Lichtenwalter all the interest of her late husband in the operation. This was agreed to by the plaintiffs. Lichtenwalter having gone into possession and operation of the lands above mentioned under the purchase from Mary G. Rothermel, partially reconstructed the tramroad thereon, and the defendants in the present case made an agreement by which said Lichtenwalter undertook and agreed within six months from date to construct a railroad or tramway into and upon the said lands, for the purpose of enabling both parties to take timber from the lands above mentioned; it being further provided by agreement that the whole road or tramway should be equally and jointly owned, the one half by Lichtenwalter and the other one half by these defendants. By deed of July 25, 1889, Lichtenwalter contracted to pay certain sums to Mary G. Rothermel and gave judgment notes in part payment of the consideration of his purchase. Mary G. Rothermel entered judgment against Lichtenwalter and issued execution thereon, levying upon all of his interest in the operation, " the said tramroads being sold together with his rights of way over said lands," the defendants becoming the purchasers of said tramroads and rights of way. The plaintiffs claiming to own the tramway constructed as aforesaid brought trespass against the defendants for using the same.

Other facts appear in the opinion of the court.

[At the trial the court admitted in evidence on behalf of plaintiffs, under objection of defendants, the certified record of a judgment in the United States circuit court and the execution on same, by virtue of which it is alleged the lands claimed by plaintiffs were sold.] [The court also admitted in evidence on behalf of the plaintiffs, under objection of defendants, the deed of John M. Davis, marshal for the western district of Pennsylvania, to Abraham Kerns.] [The court also admitted in evidence on behalf of plaintiffs the deed of John C. Smith and wife to Alexander Silliman et al.] [The court rejected evidence offered by defendants to show the usage of trade as to the ownership of a tramroad constructed in lumbering operations.]

The plaintiffs presented the following points, which points were affirmed:

[4. That a partial destruction of said tramway by the flood of 1889 did not relieve the said Lichtenwalter and Rothermel from the duty of reconstructing the same, and the uncontradicted evidence in the case is that they did reconstruct said tramway after the flood of 1889 for the purposes mentioned in the contract of October 30, 1885.]

[6. That there is no privity of contract between the plaintiffs and defendants in this case, and if the jury find from the evidence that the plaintiffs in this suit are the owners of the land upon which said tramway was constructed and that the defendants by their servants and employees entered on the property of the plaintiffs at any time between the 1st day of March, 1894, and the present time with their dinkeys and cars, they are trespassers and plaintiffs are entitled to recover.]

[8. That there is no evidence in the case that shows that the defendants had a right of way over the lands of the plaintiffs.]

The court refused to affirm defendants' fourth point as follows:

[4. That as the agreement of October 30, 1885, is silent as to who was to own the tramroad therein mentioned after its completion, the ownership of it is to be determined from all the evidence in the cause, taking into consideration particularly the fact that this tramway was constructed to remove timber from the plaintiffs' land; that it has no outlet except through the lands of others over which the plaintiffs had no right of way; that the first road was built with lateral stringers and wooden rails and was in large part destroyed by the flood of 1889, and that the road used by the defendants was a new road built with cross ties and steel rails, paid for wholly by Lichtenwalter and these defendants; and also taking into consideration the construction placed upon the agreement by the parties themselves by their sales of the tramroad and contracts relating thereto as their own personal property, and the sale of the same by Mrs. Mary G. Rothermel, one of the plaintiffs, as the property of Lichtenwalter, and all the circumstances surrounding the transaction. Answer: In reply to this point we say, that the ownership of the road is to be determined from all the evidence in the case and the circumstances surrounding the transaction.]

[5. That the sale of the tramway by Lichtenwalter to Rothermel and the resale of the same by Mrs. Rothermel to Lichtenwalter as shown by the written agreements, ratified by the plaintiffs, is stout evidence to be considered by the jury in determining the ownership of the tramway. Answer: These circumstances are evidence, and the weight to be given them is for the jury.]

[6. That the agreement of October 30, 1885, between plaintiffs and Lewis Rothermel and Lichtenwalter, gave to them the possession of the land occupied by the tramway which they constructed, and when Lichtenwalter sold all his interests under the agreement of October 30, 1885, to Rothermel, with the written consent of the plaintiffs, allowing Rothermel to associate with him in the business whomsoever he chose, and Mrs. Rothermel then resold to Lichtenwalter with the consent of the plaintiffs, it gave to Lichtenwalter the possession of the tramroad, with all the rights of Lewis Rothermel as to the same, and plaintiffs had no interest in the same and cannot maintain this action for the use of the same by the defendants, who succeeded to all Lichtenwalter's rights and title therein and thereto. Answer: The sixth point is refused.]

[7. There is no evidence that the defendants ever used the original tramway constructed by Rothermel and Lichtenwalter under the agreement of October 30, 1885, and therefore no damages can be found against them for such use. Answer: The seventh point is refused.]

[8. The evidence in the case is that the defendants used a different tramway than the one constructed by Rothermel and Lichtenwalter in conformity with the agreement of October 30, 1885, by the plaintiffs. Answer: The eighth point is refused.]

[10. If the jury find from the evidence that Mrs. Rothermel, one of the plaintiffs, sold the tramway in dispute with the consent of her co-owners, the other plaintiffs, as is set forth in the agreement of July 25, 1889, there can be no recovery by the plaintiffs. Answer: The tenth point is refused.]

[15. The undisputed evidence being that Mrs. Mary G. Rothermel, one of the plaintiffs in this case, and one of the owners of the land in question by the same title as the other plaintiffs, sold the tramroad in question, with the rights of way over the land on which the same was located, as the property of Albert Lichtenwalter, by sheriff's sale on February 21, 1894, to these defendants, she is estopped from asserting title thereto as against these defendants, or damage for the use thereof by them, and the plaintiffs cannot recover. Answer: Refused.]

The court charged the jury, inter alia, as follows:

[By the extension of 1889, the right of way was to be given to Lewis Rothermel and whoever he might associate with him after the timber was all removed. But there is no evidence that the timber was all removed, so there has no right of way been acquired over those lands by any person. If you find in this case that the plaintiffs are owners of the land and the defendants ran their cars over it with timber on from other lands they would be trespassers, and your verdict should be in favor of the plaintiffs.]

[Burden was on the...