McHugh vs. O'Neill et al.

New Trial-Replevin-Weight of Evidence.

A new trial will be granted where the weight of the evidence in an action in replevin tended to prove that plaintiff was in arrears for rent at the time action was brought, and the credits claimed by the plaintiff were not supported by plaintiff's testimony and the memoranda submitted, although the jury decided in favor of plaintiff.

Motion for new trial. No. 2136 April Term, 1914. C. P. Allegheny County.

William McDowell, for plaintiff.

John D. Brown and John E. Winner, for defendant.

CARPENTER, J., June 10, 1915.-This was an action of replevin brought by plaintiff after a levy had been made on her household goods for rent alleged to be due. Plaintiff averred that she had paid her rent in full and was not indebted to defendant in any sum. There is no complaint that the question in dispute was not properly submitted to the jury, but it is contended that the verdict is against the clear weight of the evidence.

It appears that the plaintiff had been occupying defendant's house as tenant for several years and that some question arose early in 1914 as to payments of rent. On March 3rd, 1914, Samuel W. Black Co., the landlord's agent, wrote Mrs. McHugh giving her a statement of payments made on various dates beginning with July 14th, 1913, and ending with February 4th, 1914, in which it was stated that the payment of $35.00 made July 14th, 1913, was for balance of $5.00 on May rent and $30.00 on account of June, and that on the date of the letter there was a balance of $5.00 due for December and rent for January and February. The rent for two months was $70.00, and the balance claimed for December $5.00, or in all $75.00. When the levy was made in March an additional month's rent was claimed to be due, or in all $110.00. Mrs. McHugh made or had a friend make a pencil notation on the letter above mentioned covering all credits claimed by her from January 10th, 1913, to January 19th, 1914, and returned the letter with the notations to Samuel W. Black Company. The credits given by the Black Company, from July 14, exceed the credits claimed by Mrs. McHugh for the same period by $30.00, due to the fact that she omitted a payment made February 4th, 1914.

Mr. McHugh testified that the last payment was made in January, 1914, and that he then paid the rent for January and February, and that the March rent was paid, too. In this he is evidently mistaken because as late as March 5th the credits claimed were for rents paid to January 1st, 1914, and were noted as being balance for November and on account of December, 1913. It seems clear beyond doubt that Mr. and Mrs. McHugh are mistaken when they say that there was no rent due when the landlord's warrant was issued. It is equally clear that we have no evidence of payment of the balance due on December rent nor evidence of payment of the January, February and March rent, except the averment that payment was made, and this is denied.

Plaintiff's claim that the rent was paid in full prior to the date of levy is not only not sustained by the weight of the evidence, but on the contrary the decided preponderance of evidence supports the contention of defendant.

New trial granted.

Rodgers et al. vs. Pittsburgh, Fort Wayne and Chicago R. Co. et al. Ejectment- -Right of Way-Non-User-Evidence-Directing Verdict

Points.

Grantor conveyed realty with the following reservation: "Reserving therefrom the right of way over a strip of ground seven feet wide along said railway already taken by said Railway Company, so long as the same shall be occupied by said Railroad Company for the purpose of their railroad." In subsequent conveyances the right of way was referred to as 40 feet from the center line. The original grant of right of way did not specifically state the width of this grant. It was admitted that for many years the railroad used only 32 feet of its right of way. In 1883 or 1884 the railroad excavated a hillside, dumped the ground on the other side of the embankment and materially changed the location of its tracks. In an ejectment to regain this seven feet as well as some of the additional made ground together with the embankment down to low water mark on the ground that the company had not used the land or occupied this space and that during that time it had been claimed adversely.

The court directed a verdict for the defendant. On motion for a new trial Held: That when the court directed a verdict for the defendant, plaintiff's points need not be answered.

Held: That unless it appeared affirmatively that the grant was for a certain width, it would be presumed that the grant was for the width allowed by law, and that the grants of 80 feet to adjacent properties would be competent evidence tending to establish this width.

Held: That a railroad company was not compelled to use all of its right of way until it saw proper to do so, and it would not lose any of its rights by nonuser for 21 years, and that its entry having been lawful, it could re-enter and appropriate all of its original grant.

Ejectment. No. 432 December Term, 1911. C. P. Allegheny County.

S. S. & C. B. Mehard, for plaintiffs.

Dalzell, Fisher & Hawkins, for defendants.

REID, J., September 16, 1915. This is an action of ejectment brought by plaintiffs to recover from the defendant corporations all of the land situate in the Borough of Bellevue lying between a line drawn parallel with and twenty-seven feet distant from the center line of defendants' right of way and low water mark of the Ohio River-and within certain adjacent property lines on the east and west, as to which latter boundaries there is no controversy.

The plaintiffs' Exhibit No 4 is a plan which defines the land described in the writ, which is there stated to contain 617 square feet, more or less, but which, in fact, contains 6,166 square feet, more or less.

Upon conclusion of the testimony, the Court affirmed defendants' request for binding instructions and directed the jury to render a verdict for the defendants, which was done. Plaintiffs' counsel thereupon moved for a new trial and we are now to consider that motion.

The parties in their abstracts showed title out of the same original grantor, Benjamin Dilworth, who owned the land in 1850. There is no controversy with regard to the chain of title from this original grantor down to and into the plaintiffs. The dispute is limited solely to the width of the Railroad Company's right of way at the point in question, which defendants claim is 80 feet, while plaintiffs contend that it is but 39 feetthis being made up of 32 feet occupied by the defendants until about 1884, and seven feet additional south of a point measured 16 feet from the alleged center line of the original right of way, which seven feet was reserved to the Railway in a certain conveyance from Jane Sterrett to plaintiffs' grantors.

The Ohio & Pennsylvania Railroad Company (to whose rights defendants have succeeded) was chartered by Act of Assembly April 11, 1848 (P.

Rodgers et al. vs. Pittsburgh, Fort Wayne and Chicago R. Co. et al.

L. 1849, p. 754). This charter contained no provision as to the width of the proposed railway, but it contains a clause granting to the company so much land as it could take under the law of Pennsylvania. Defendants contend that their right to appropriate and use a road bed of full 80 feet in width exclusive of necessary slopes to retain their right of way is based upon the discretion of the directors of the railway subject to the restriction that they may not appropriate more land than reasonably necessary for railway purposes. The evidence discloses, as shown by Exhibit No. 3 and the testimony of the defendants' engineer, C. M. Sprague, which was not contradicted upon that subject, that the river edge of the top of the present railway right of way embankment is within the limits of 40 feet measured from the center of the roadbed. The defendants, to support their title to such right of way, offered in evidence Exhibit No. 1, being an unrecorded grant from Benjamin Dilworth to the Ohio & Pennsylvania Railway Company, dated May 3, 1850. It recites the location of the company's line through grantors' lands and continues: "for and in consideration of the great public utility of said railroad as also the sum of one dollar to us in hand paid by said company do hereby release, convey and confirm unto said company the full and perfect right of way through and over our said lot or lands for their railroads. To have and to hold said right of way through and over said lots or lands with all the rights and interests, privileges and immunities necessary for the enjoyment thereof and contemplated by the Acts of Assembly incorporating and regulating said company."

In order to show the extent of the right of way then claimed by defendants' predecessors, the record of proceedings in condemnation of a right of way across the lands of heirs of William Jackman immediately adjoining the Dilworth land on the west and across the lands of James and Andrew Jack immediately adjoining it on the east, found among the records of the Common Pleas of Allegheny County at No. 155 June Term, 1850, was offered in evidence and admitted over the objection of plaintiffs' counsel.

This record establishes the fact that at or about the time of the execution of the Dilworth grant, the Ohio and Pennsylvania Railway Company claimed and obtained a right of way over these immediately adjacent lands 80 feet in width. The title to the Dilworth land by descent and sale through various successors came finally in February, 1883, into Jane Sterrett. At that time, and for a considerable period before, defendants maintained but two tracks through the property in controversy. In February, 1883, Jane Sterrett conveyed to Simpson Horner, George Roberts and Samuel S. Roberts the property now claimed by plaintiffs, with the following reservation: "Reserving therefrom the right of way over a strip of ground seven feet wide along said railway already taken by said Railway Company, so long as same shall be occupied by said Railroad Company for the purpose of their railroad." She did not, however, designate the particular location of this reserved strip.

Four months later the same Jane Sterrett conveyed to Thomas D. Messler, Trustee, by the following description: "Beginning at a point the intersection of the present center line between two main tracks of the Pittsburgh, Fort Wayne & Chicago Railway with the prolongation of the division line between Rebecca Sterrett and heirs of John Sterrett; thence by said division line south 4434 degrees west 40 feet to a point; thence northwesterly and parallel to, and 40 feet distant from, said center line *** 135 feet, more or less, to the division line between heirs of John Sterrett and Thos. Mulvehill; thence by said division line north 1 degree west 65 feet, more or less, to said center line; thence southeastwardly by

Rodgers et al. vs. Pittsburgh, Fort Wayne and Chicago R. Co. et al.

said center line 1811⁄2 feet, more or less, to the place of beginning; with as much more in width as may be necessary for the embankment of said railway, the embankment being 40 feet wide from center line between present tracks at level of rail, excepting so much of the above described piece as is included in the present right of way of said railway, containing 973 feet, more or less * *

Thos. D. Messler thereafter conveyed the land thus described to the Fittsburgh, Fort Wayne & Chicago Railway Company.

Between 1882 and 1890, the Railway Company at the locality now in question excavated into the hill to the north of its then existing tracks and transferred the earth and other material thus obtained to the river or southern side, widening the right of way out to the center line measured 40 feet from the center. Trimble, Engineer, says this excavation and widening was done in 1883 and 1884, the roadbed embankment thus provided remaining idle until 1890, when the additional tracks were laid, and that the top of the bank is shown by Exhibit No. 3 to be within the claimed right of way-and that the plan dated December, 1890, shows the top of the bank as it existed at the place in controversy in 1890 (Transcript of Testimony, pp. 38-49). The conflict of testimony as to when the two additional tracks were actually laid, some of the witnesses for plaintiffs claiming it was as late as 1896 or 1897, does not seem important, as the actual widening was completed as early as 1883 or 1884, and its limits marked on defendants' map in 1890.

It was testified by the Engineer, Trimble (Transcript, pp. 30-32), that the slopes which form part of the railway embankment and which, until the placing of the Davis Island Dam there, would extend practically to low water mark, were necessary to support the tracks, and that erosion due to high water and ice would be replaced from time to time as required, the embankment with its slope being maintained substantially at its uniform width since the time of construction (Transcript, pp. 30-33).

Numerous witnesses testified for the plaintiffs in rebuttal that before the widening of 1882, 1883 and 1884, the greatest width on the level occupied by defendants' two tracks did not exceed 32 feet, that there was room between the foot of the slope at that time for a wagon track or a path, and at least one river captain testified that before the widening and the consequent further projection of the slope towards the river, he made landings there.

No witness undertook to testify that the present slope is not required for the support of the tracks upon the existing 80 feet roadbed or right of way, or that its maintenance was not required by good engineering.

It was urged upon the trial that by reason of the fact of such proof of a width of 32 feet, and the use of such space for two tracks for many years prior to 1882, the right of defendants was limited to that width plus 7 feet additional obtained from Mrs. Sterrett-which would confine the utmost boundary of the top of the embankment on the river side to a line measured 23 feet from the center. The writ, however, describes the southern line as being 27 feet south of the center. Plaintiffs' counsel, therefore, maintained that the jury must pass upon the question of whether or not plaintiffs were entitled to all the land lying south of the line thus placed 27 feet from the center of such a 32-feet right of way.

There was no denial of the fact that from 1884 down to the bringing of this suit, for more than twenty-one years, the defendants claimed the width of 80 feet and there was no evidence of any claim made by any one in opposition to such right during all that time.

The Court being of the opinion that under the original Charter Act, the Dilworth grant and the definition by condemnation proceedings of the

Rodgers et al. vs. Pittsburgh, Fort Wayne and Chicago R. Co. et al. claimed right of way of the Ohio & Pennsylvania Railroad immediately to the east and west of the Dilworth land, as 80 feet in width, and that the railway was not bound to use its entire property to the full width until the exigencies of traffic required it, directed a verdict for the defendants. If the Court were right in this view, it followed that the defendants' occupancy of the land formerly of its grantor could not be limited. to the level top of the 80-feet wide embankment, but also carried with it necessary slopes on the river side, which in places extend 40 feet beyond the top line of the level roadbed. It was contended that in any event there was some space between the foot of such slope and plaintiffs' southern property line for which plaintiffs were entitled to a verdict. The Court declined to accept this view, since, to recover any such fractional part of the ground described in the writ, the jury must have been able to describe the property for which such a verdict could be rendered, and there was no definite and certain limits fixed in or presented by the plaintiffs' testimony or appearing in the case. To have allowed the jury to pass upon that question would have been asking them to guess at the metes, bounds and area.

Plaintiffs assign seven reasons for new trial. Five of them relate to the Court's not answering plaintiffs' points. The Court upon affirming defendants' point for binding instructions neither answered nor refused to answer any of defendants' points. These points are copied into the reasons for new trial, and below each are the words "answer refused." This, no doubt, is merely an inadvertence, as no such disposition was made of them by the Court. The Court (Transcript, p. 161) said: "The points for plaintiffs and defendants need not be answered for the reason that the single point for binding instructions presented by defendants has been affirmed." We believed at the time that discussion of the legal propositions involved in other than the point affirmed was both unnecessary and unwise. The particular question is decided in Helzer vs. Helzer, 187 Pa., 243, where Mitchell, J., in the opinion, at p. 246, says:

"Where the jury have no duty * * * left to them, and the court itself applies the law by a binding instruction what verdict shall be rendered, answers to points become mere theoretical discourses on law, having no practical bearing on the case. All the answers might be wrong and yet if upon the facts as they appear the direction of the verdict was right, the` answers would go for nought in this court. The only question therefore really in this case is whether the learned judge was right in directing a verdict for defendant."

The other reasons are: "Sixth. The affirmance of defendant's point for binding instructions, and, seventh, error of the court in admitting the record of the condemnation proceedings at No. 155 May Term, 1850, and "in connection therewith the plans shown in defendants' private records." We have already indicated the reasons upon which the Court based its affirmance of the request for binding instructions, but some reference to the authorities may not be out of place.

A railroad company authorized by its charter to take for its right of way a strip of land not exceeding 60 feet in width may limit the width of its appropriations to less than 60 feet; but unless such limitation affirmatively appear, it will be presumed that it has appropriated the full width allowed by its charter of incorporation: Jones vs. Erie & Wyoming V. R. R. Co., 144 Pa., 629.

The defendants did not lose title to the rights acquired by grant by non-user of a portion of the land. They were not required to use the full width of their right of way: Pittsburgh, Fort Wayne & Chicago Ry. Co. vs. Peet, 152 Pa., 488.