Will v. Piper

• Decision Date: 26 July 1957
• Parties: Gretta WILL v. William I. PIPER, Robert Piper, and Alfred Piper, individually, and trading and doing business as William i, Piper & Sons, and W. Howard Larkins. Appeal of W. Howard LARKINS.
• Court: Pennsylvania Superior Court

Page 41

134 A.2d 41

184 Pa.Super. 313

Gretta WILL v. William I. PIPER, Robert Piper, and Alfred Piper individually, and trading and doing business as William i, Piper & Sons, and W. Howard Larkins Appeal of W. Howard LARKINS.

Superior Court of Pennsylvania.

July 26, 1957.

Application for Allocatur Denied Sept. 30, 1957.

A. C. Seales, and Scales & Shaw, Greensburg, Pa., for appellant.

Vincent E. Williams, Smith, Best & Horn, James Gregg, and Portser, Gregg & Nichols, Greensburg, Pa., for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.,

WRIGHT, Judge.

Gretta Will instituted an action in ejectment, and in trespass for damages, by filing a complaint and abstract of title in which she alleged that she was the owner of certain land in Ligonier Township, Westmoreland County; that defendant Larkins owned the property adjoining her to the north and east; that Larkins contracted with defendants Piper for the cutting and removal of timber therefrom; and that the defendants wrongfully cut and removed timber from her land, and had possession of a part thereof which they refused to relinquish. The defendants filed an answer with abstract of title. After a three-day trial, the jury found for the plaintiff in the trespass action against defendants Piper in the sum of $1000, and in the ejectment action found a special verdict, agreed upon as to form, for the plaintiff against both the Pipers and Larkins. Motions for new trial and judgment n.o.v. were overruled by the court en banc, and the prothonotary was directed to enter judgment on the verdicts. Larkins has appealed.

The description of the Will tract in the complaint is as follows: 'Beginning at a point at the line of intersection of land of, or formerly of, Charles Frisk with land of, or formerly of, S. Hanks and D. Rhoads; thence, along the line of said land formerly of Charles Frisk, North 46 1/2~ East, two hundred eighty rods (280) rods to a point on other land of, or formerly of, Joseph Hohnston and Sarah Hohnston; thence along the same, South 78~ East fifty-nine (59) rods, to a stone; thence South 46 1/2~ West two hundred seventy-four (274) rods to a stone; thence North 78~ West, fifty-nine (59) rods, to the place of beginning, containing one hundred two (102) acres, strict measure'. sure'. There was execpted and reserved a tract of approximately 8 acres not here material.

The description of the Larkins tract in the answer is as follows: 'Beginning at a chestnut stump corner of lands now or formerly of William Sutton and St. Clair Forest; thence North 40~ West 2415 feet to a chestnut stump corner of lands now or formerly of Alex Himler; thence North 50~ East 4405 feet to stones; thence continuing along land now or formerly of Alex Himler, North 40~ West 1347 feet to post; thence along lands now or formerly of Robert Anderson and now or formerly of Charles Frisk, North 47~ East 3825 feet to a post; thence continuing along land now or formerly of Charles Frisk, North 43~ East 800 feet to a post; thence along land now or formerly of _____ Ross, North 51~ East 2105 feet to a gum tree; thence along land now or formerly of John Curry, South 3~ East 6998 feet to stones; thence along lands now or formerly of Nils Skroder, North 69~ West 1459 feet to a hickory; thence along lands now or formerly of Victor Nordstrom, South 47~ West 4606 feet to a post; thence along lands of Sutton aforesaid, North 75~ West 297 feet to stones; thence South 15~ West 726 feet to a chestnut stump, the place of beginning. Containing 590.236 acres as per survey of D. R. Walkinshaw, Civil Engineer, dated April 1, 1915'. There was excepted and reserved a tract of approximately 31 acres not here material.

The dispute concerns the location on the ground of the northern and eastern boundary lines of the Will property, along which boundary lines the Will property adjoins the Larkins property. Joseph Johnston was the commom source of title to both tracts. The first deed from this common source was one to Ludwig Nordstrom, dated January 14, 1888, and covering the tract of 102 acres described in the complaint. Nordstrom conveyed this tract to Mrs. Will by deed dated November 6, 1934, excepting the parcel of approximately 8 acres not here material. By a subsequent conveyance the tract was conveyed to Mrs. Will and her husband, and finally, by deed dated December 27, 1951, it was conveyed back into the name of Gretta Will alone. The description in all these deeds remains the same.

On April 1, 1915, the remaining portion of the Joseph Johnston tract was surveyed by D. R. Walkinshaw, and a draft was made of the survey showing the courses and distances, giving the monuments and stating the area to be 590.236 acres. Joseph Johnston died testate on February 1, 1919, and devised all his real estate to his daughter, Eliza Jane Johnston. On May 14, 1947, she conveyed the tract to W. Howard Larkins, excepting the parcel of approximately 3u acres not here material. This deed described the property according to the Walkinshaw survey.

At the trial, Mrs. Will produced a draft made by Walkinshaw, who had gone on the ground in 1954 and surveyed according to the monuments which he had located in 1915. Walkinshaw was an engineer of fifty-three years experience and was thoroughly familiar with the general locality. He located the hickory corner mentioned in the Larkins description, being the northeast corner of the Will tract. He also located a stone monument at the southeast corner of the Will tract, and found a post and wire fence at this point, separating the Will tract from lands formerly of Nils Schroder immediately adjoining it on the south. At the southwest corner no monument or other mark could be found. Using the monuments on the ground, and correcting the bearings to allow for the shifting of the magnetic pole, Walkinshaw found the northern boundary of the Will tract to run a course north 49~ east, and the distance between the monuments to be 4606 feet. The remaining disputed boundary, that on the east, had a course south 67~ east, and the distance between the two monuments measured 1232 feet. As surveyed by Walkinshaw in 1954, the lines of the Will tract in controversy coincided with the corresponding lines of the Larkins tract as originally surveyed by him in 1915. He fixed the area at 97 3/4 acres, which closely approximates the net quantity called for in the Will deed.

The defendants introduced the testimony of two surveyors. Burgess Ross made a survey of the entire Larkins tract in 1951, and ran the easterly line of the Will tract in 1953. Drafts of these surveys were introduced in evidence, as well as a composite of various surveys made by Ross showing several tracts joining the Larkins property on the east. It is noteworthy that the Ross draft of the entire Larkins tract differs materially from the original Walkinshaw survey made for Johnston and subsequently used as the description in the deed to Larkins. In particular, insofar as we are here concerned, Ross failed...