Thompson v. W. P. Zartman Lumber Co.

• Decision Date: 13 October 1913
• Docket Number: 25-1913
• Citation: 55 Pa.Super. 302
• Parties: W. P. Thompson v. W. P. Zartman Lumber Company, Appellant
• Court: Pennsylvania Superior Court

55 Pa.Super. 302

W. P. Thompson v. W. P. Zartman Lumber Company, Appellant

No. 25-1913

Superior Court of Pennsylvania

October 13, 1913

Argued March 11, 1913 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Juniata Co.-1909, No. 88, on verdict for plaintiffs in case of W. P. Thompson et al. v. W. P. Zartman Lumber Company.

Trespass to recover damages for the wrongful cutting of timber on twenty-one acres of land in Turbot township. Before Seibert, P. J.

At the trial it appeared that the case turned upon the location of the southern line of the William Stewart survey, and the northern line of the James Ramsey survey. The facts relating to these surveys are stated in the opinion of the Superior Court.

H. J. Shellenberger and John Carney were offered as witnesses by the plaintiff to testify as to the value of the timber cut. After they had been examined as to their qualification, the court permitted them under objection and exception to testify as to value.

When W. F. McCahan, a witness for defendant, was on the stand, he was asked this question:

" Q. Now how did you find this subdivisional line of the Klugh between the Boyer and the Kohler?

A. Well, it was well marked.

Q. What did you find at this point?"

Mr. Hoopes: We object to the evidence of these subdivisional lines. They are interior lines of the original warrants and it is incompetent, irrelevant and immaterial.

The Court: We cannot tell at this time whether this evidence is relevant or not. We assume that it is as they are putting it in.

Mr. Neely: We go further: We show that the wellmarked corners of these subdivisional tracts are on the north line of the Klugh and these other warrants being the recognized corners of the owners of the tracts.

Mr. Hoopes: Objected to. Make an offer.

Mr. Barnett: Counsel for the defendant offers to prove by the witness on the stand, a surveyor who has gone over the ground, the lines and the marks upon the lines of subdivision of the Ramsey, Klugh, Jackson and Huston tracts for the purpose of tieing those lines between the northern straight boundary line and the southern boundary line, and marks upon the respective northern and southern boundary lines, for the purpose of establishing the main northern boundary line of the plot surveying the northern boundary line of the Ramsey tract.

Mr. Hoopes: Objected to as immaterial, irrelevant and incompetent until the evidence shows that there are original marks upon any lines of any tract in this block by which this north line can be determined from the original survey.

The Court: Objection is overruled and evidence admitted for the purpose offered. If it fails to be connected with other marks which will indicate the ancient character of this line, of course, the court will, on motion, strike it out.

An exception noted for the plaintiffs.

" Q. Now, Mr. McCahan, how was this line __ "

The Court: But I don't see, Mr. Neely, how these subdivisional tracts, the second subdivision, would be important.

" Q. How did you find the line between the Boyer and the Kohler marked here?

A. There was a well-marked line between the Boyer and the Kohler."

Mr. Pennell: Is it a subdivisional line?

Mr. Neely: Yes, sir.

Mr. Pennell: Objected to because it is irrelevant, immaterial and incompetent, being a subdivisional line of the original tract, or warrant, or survey.

Mr. Neely: How was that line indicated on the ground, I mean the line between the Boyer and the Kohler, because I want to arrive at the southwest corner of the tract?

The Court: You don't refer to the divisional line between north and south?

Mr. Neely: Yes, I do.

The Court: It seems to me you get into an infinitude of detail here.

Mr. Neely: My purpose is to show the witness what he found at the southeast corner of the Boyer tract on the southern line of the Klugh.

Mr. Pennell: Then you have withdrawn the other question?

Mr. Neely: No, I think that is right because he must lead to this point by a well-marked line.

Mr. Hoopes: Objected to, and ask it to be stricken out.

The Court: The court will confine you to marks along the northern line and southern line of the survey and cut out the intermediate lines. An exception noted for the defendant.

Mr. Pennell: We now offer in evidence the act of assembly authorizing the commissioners to run the county line between Perry and Juniata counties, it being the Act of April 2, 1860, found in Pamphlet Laws of 1860, page 529.

Mr. Barnett: Objected to as irrelevant and immaterial.

Mr. Pennell: We offer it for the purpose of showing the authority of the commissioners to run the county line, to be followed by the report of these commissioners as found on file in the prothonotary's office, in Juniata county, for the purpose of locating the Juniata county line as it was run in pursuance of this act of assembly, to show the difference between the county line as it is run now on the mountain, and the tract line as we contend it is, south tract line. Also for the purpose of enabling the jury to determine the true tract line.

Mr. Barnett: Objected to as irrelevant and immaterial and inadmissible for the reason that the act of assembly does not, in any way, tend to locate the line upon the ground, and the only materiality the county line has in this case is as a possible monument for the purpose of locating the boundaries of these tracts, and its value for that purpose depends upon its discovery and location upon the ground by the surveyors in endeavoring to locate the tract and where the trees were they found and claimed to be the line, is not material in this case for the reason that the Ramsey and other tracts in the block with the Ramsey, do not even call for the county line as an adjoiner or boundary. Also object because both the act of assembly and survey of the county line, under it, are more than half a century later in date than the original survey of the tracts in question.

The Court: Mr. McCahan, the surveyor, adopts the county line and ties it to this survey.

Mr. Hoopes: The title papers call for the county line as the southern line for this Ramsey tract.

The Court: Objection overruled, evidence admitted, and an exception noted for the defendant.

Mr. Pennell: We also offer the report of the commissioners, fixing the county line between Juniata and Perry counties, filed in the prothonotary's office in Juniata county on August 13, 1860.

Mr. Barnett: Objected to as irrelevant and immaterial, and for the last reasons given.

The Court: We make the same ruling and note the exception for the defendant.

Mr. Pennell: We offer in evidence draft prepared by Mr. Burchfield, identified as plaintiff's exhibit No. 1, April 29, 1912.

Mr. Barnett: Objected to as incompetent and inadmissible for the reason that the draft contains lines never run by a surveyor, who made the draft, as to which he cannot testify and has not attempted to testify, and shows upon the draft an assumed county line not shown upon the original certified draft from which this draft purports to be any part taken and, therefore, there is nothing authoritative in the draft, and it is not covered entirely by testimony, and parts of it are not covered by testimony in such a way that the uncovered portions can be excluded from the consideration of the jury.

The Court: Objection overruled, evidence admitted and an exception noted for the defendant.

Mr. Pennell: Also offer in evidence the act of assembly dated September 19, 1789, 2 Smith's Laws, 493, it being an act for erecting certain parts of Cumberland and Northumberland counties into a separate county.

" Second Section. Be it enacted, and it is hereby enacted by the representatives of the freemen of the Commonwealth of Pennsylvania, in General Assembly met and by the authority of the same, that all and singular lands lying within the bounds and limits hereinafter described and following, shall be and are hereby erected into a separate county, by the name of Mifflin County, namely; Beginning at the Susquehanna River, where the Turkey Hill extends to the said river, thence along the said hill to Juniata, where it cuts Tuscarora Mountain, thence along the summit of the said mountain to the line of Franklin County, thence along the said line to Huntingdon County, thence along the said line to Juniata River, thence up the said Juniata River to Jack's Narrows, thence along the line of Huntingdon County to the summit of Turkey's Mountain, thence along the line of Huntingdon and Northumberland Counties, so as to include the whole of Upper Bald Eagle Township, in the county of Northumberland, to the mouth of Buck Creek, where it empties into the Bald Eagle Creek, thence to Logan's Gap, in Nittany Mountain, thence to the head of Penn's Creek, thence down said creek to Sinking Creek, leaving George McCormick's in Northumberland County, thence to the top of Jack's Mountain, at the line between Northumberland County and Cumberland, thence along the said line to Shure's Spring, at the head of Mahantongo Creek, thence down the said Creek to Susquehanna River, and thence down the said river to the place of beginning."

Mr. Pennell: That is the section to show that the summit of the mountain was the county line between Cumberland and Mifflin county.

The Court: What materiality has that?

Mr. Pennell: This tract, to go to the summit, has to go thirty-five rods from where it is. We are bound to show where it was to go.

Mr Barnett: Objected to, because it is irrelevant and immaterial and not connected in any way with any testimony in...