
    Urich v. Reber et al.
    In an action of trespass to recover damages for the removal of a fence erected by the plaintiffs in a lane between plaintiffs’ and defendants’ farms, the defendants offered evidence to prove a right of way over the lane by adverse user. The plaintiffs offered evidence to prove that the use was permissive by the plaintiffs and their predecessors in title. There was no evidence that the original entry was tortious. The court refused a request to charge that if the jury believed the plaintiffs had maintained the lane for their own accommodation they could at any time resume its exclusive possession, as this request ignored the claim of adverse user, of which there was evidence to submit to the jury. Held not to be error.
    Where, in such ease, the land was at one time uninclosed woodla/nd, but the timber was removed more than twenty-one years before the suit was brought, the Act of April 25,1850, would not apply.
    The court will not reverse for obscurity in the answer to a point, where the general charge upon the same point was so clear and accurate that the jury could not be misled.
    Feb. 21, 1889.
    Error, No. 367, Jan. T. 1888, to O. P. Lebanon Co., to review a judgment on a verdict for defendants in an action of trespass by Eliza Urich and her husband against Wayne Reber, Miles Reber, Isaac Reber and Peter Eckert, at June T. 1886. Sterrett and Mitohelu, JJ., absent.
    This action was brought to recover damages for the removal of a fence erected by the plaintiffs in a lane between the plaintiffs’ and defendants’ farms. The plaintiffs claimed and offered evidence to prove that their line ran through and along the middle of the lane and that the strip was left by their predecessors in title for their own accommodation in getting to another part of the farm, since sold to one Steiner, and that they had a right to set out the fence as they had done, thus resuming the exclusive use of the strip. The defendant claimed and offered evidence to prove that the entire lane was within their lines, and, if this were not so, they had at least a right of way over the lane by adverse user. There was no evidence that the original entry was tortious nor was there any clear evidence when the road was opened or who then owned the lands. The defendants were lessees of the Hauck farm.
    The further facts of the case appear in the charge of the court below, as follows, by McPherson, P. J.:
    “ It sufficiently appears, from the undisputed testimony in the case, that there has been a road of some sort running along between the canal and the railroad, at least substantially the same line as the road that is there now. Some witnesses say that it has been there as high as 70 years. After it goes beyond the canal, there is different testimony as to the route that it took. Beyond that point, as I understand the testimony, it reached ultimately Ley’s mill. Just what route it took to go there there is some conflict of opinion about. But I do not consider the testimony, for the purpose of locating the road to Ley’s mill, to be of much importance in the case. It seems to me there aré other' questions that are more important, and which the jury may more satisfactorily reach than the question of the Ley use of the road, mostly for the benefit of Ley’s mill and its customers.
    “Now, as has been stated to you by the counsel for the plaintiff, the first question to be determined is where the line between the Hauck and the Urich farm actually is. The testimony upon that point is conflicting. Mr. Hayes runs the line between these two properties in the middle of this lane. Mr. Nitrauer runs it substantially along the line of Mr. Urich’s eastern fence, not absolutely but substantially, and of course those two lines cannot be reconciled. There is other testimony in the case which I shall not refer to in detail as bearing upon one line or the other; you have heard it commented upon very fully, and you will have to take all the testimony in the case as bearing upon one side or the other in respect to these two surveys, and determine which line is the true one. If you find that the line between Urich’s farm and Hauck’s farm runs along Mr. Urich’s eastern fence, thus throwing the lane over upon the Hauck property, then the plaintiff cannot recover, and it is your duty to find a verdict in favor of the defendant; and you need not, unless you choose, go on any further in the case; that, in fact, disposes of it; because, if you find it is upon the Hauck property, of course Mr. Urich has no right to go upon that property, whether it is a lane or anything else, and put his fence there. That is the plaintiff’s position, and it is unquestionably correct.
    “ If you find that the line runs along the middle of the lane, then you come to the next question, whether it is a lane over which the Hauck property has acquired a right of user, and that, with nothing in writing, I believe, depends upon the use that has been made of it by the owners of the Hauck property. If they have used this property adversely, against the will of the owner of what is now the Urich farm, have used it uninterruptedly and notoriously, and have used it undisputedly, that is to say, the use has been acquiesced in by the owners of the Urich farm, and if that use has been continuous for a period of twenty-one years before Mr. Urich, the plaintiff, set his fence out in this road or lane, then the plaintiff cannot recover for this right of way upon that property, he could not build up that road or lane, and he could not put his fence out in the road or lane.
    “ If, however, you find that that did not exist, that this right of way was not complete, then he would be entitled to damages for the pulling of his fence. That is to say, if'there was no right of way there, and he owned the land up to the middle of the lane, the plaintiff had a right to set up his fence upon his line wherever he chose to do so, and nobody had a right to disturb it; and, if it was •disturbed, he would be entitled to such damages as would compensate him for the interference.”
    After instructing the jury upon the question of damages, the court continued:
    [“Now, in regard to this question of adverse user, it is a question for yourselves, peculiarly a question of fact for yourselves. It is, of course, possible that adverse user may not appear in any given case, and this use of it by the defendant is denied for the reason that Mrs. Urich, and those who preceded her in the title, gave permission to them to use this lane, that the use of that way was given by their permission, that is, the way to other parts of the property, and whether by their leave, or without their permission to use, or whatever plan was made, is a question for you to determine.] [4] It is necessary, in other words, before a right can be acquired by long continued use, that, among other things, it should be adverse, it should be against the will of the owner. Sometimes that will is manifested by the mere fact that he does not interfere. That is, to explain it a little more clearly, if the use of the way over another man’s land is open and notorious, ordinarily it is his business to interfere. If he sees it go on and says nothing,, it may be assumed, from the fact that he does say nothing, that he agrees to it; and this mere silence, without interference, is evidence that he •does agree to it. That suggestion may help you to determine the question whether the user was generally permissive. The whole question is one of fact for yourselves. There is no question, it seems to me, in the case, arising under the Act of 1850 in regard to unenclosed woodland.
    [“As I have said to you, I will not submit to the jury the questions arising out of the use of the road for the purpose of Ley’s mill — not that there is no evidence on that subject at all, but it seems to me it is not very satisfactory, and I prefer, at all events, running the risk of a mistake on that subject, and withdrawing the subject from the jury.] [8] That depends, as you see, upon when Ley’s mill ceased to be used as a mill, and therefore when the people ceased to go there. But, as I have just said, [I do not consider that there is any question growing out of the Act of the Legislature of 1850 in regard to unenclosed woodland] [9]; because, [as it seems to me, the evidence in the case upon the subject of the user of this road may properly be confined, and we shall so confine it, to what took place after, we will say, 1855 or 1856.] [5] I do not use these years precisely; some time about there. About that time there was a storm, it is the undisputed testimony, and the woodland was blown down. In consequence of that, all the woodland was cleared off; and then, all the witnesses agree, at least, a fence was put up along the eastern end of the Urich land, or western side of this lane. From that time to this, with perhaps some slight interval, there have been these two fences, one upon one side of the lane and one upon the other, so that I cannot see that there is any question about the unenclosed woodland, because, since that strip has been fenced up, this has been outside of the unenclosed woodland. But it is whether a right of way has ripened into an easement, as it is called. Neither is there any question, as it seems to me, in the case, in regard to whether or not the eastern fence is a division fence or not, because, as I view the case, that question never becomes of importance, because you determine the case before you get to it.
    “ If you decide that the lane runs along where Mr. Nitrauer puts it, that settles the case, without determining the fact whether the fence was the division fence or not. If the line runs where that fence is upon the ground, it is of no consequence whether the fence was a line fence or not — that determines what the fence was. So I will give you no instruction upon that subject.
    “And that brings me to the close — or what I take it to be — the close of this case; and I submit the case upon these two points alone:
    “ First. Where is the line between these two tracts ? Does it run along TTrich’s eastern fence; or does it run in the middle of the lane ? If you find it runs substantially along the eastern fence from the canal to the railroad, then the plaintiff has no case. ■ If you find it runs in the middle of the lane, and that the owners of the Hauck farm have acquired a right of way along this lane by such possession, and the use of it, as I have already described in the charge, that must be the end of the case, and the verdict must be for the defendant. If you find that they have no right of way along that road, then you find for the plaintiff, and you will find in such sum as will make him whole.
    “And I ask you, in rendering a verdict, so that we may know upon what you base it, to answer these questions:
    “£ First. Where is the plaintiff’s eastern line from the canal to the .railroad ? Does it run along his eastern fence, through the whole of the lane upon the Hauck farm, or does it run along the middle of the lane V
    
    
      
      “ If you. say it runs along his eastern fence, you need not answer the second question. If not, then the second question is to be answered, and that is—
    [“ ‘ If you answer that it runs along the middle of the lane, then have the owners of the Hauek farm a right of way along the said lane, acquired by continuous, adverse, notorious and undisputed use for at least twenty-one years immediately before May 24,1886 V [7]
    “ If you answer that£ yes,’ then your verdict must be for the defendants. If you answer £ no,’ then you will find for the plaintiff in such damages as will make him whole.”
    The plaintiff presented, inter alia, this point:
    6. “ If the jury believes that the strip or space of ground left unfenced along their eastern line by the owners of the Loos [Urich] farm, was for their own accommodation and use, and by them used in getting to and through the arch to their land south of the railway, and that the necessity for this use has ceased by reason of the sale of the land south of the railway to Steiner, then such ceasing of necessity for its use was an extinguishment of the purpose for which the space was left unfenced, and the owner could at any time resume it by setting out his fence. Ans. This is refused. This leaves out of view the possibility that the owners of the Hauek farm had acquired a right of way by adverse user, of which there is evidence to go to the jury.” [3]
    The defendants presented, inter alia, these points :
    " 2. If the jury believe that the defendants, and those under whom they claim, used the way in question in connection with their farm for twenty-one years and upward, they thereby acquired a right of way over the land, and the plaintiffs had no right to obstruct it, and they cannot recover for the removing of the obstruction. Ans. That is affirmed, if such use was adverse, continuous, notorious and undisputed, and these are matters for the jury.” [2]
    “ 3. If the jury believe that the defendants and those under whom they claim had a right of way over the road in dispute, and the plaintiffs obstructed it, the defendants had a right to remove the obstruction, and were justified in removing the same, and are not liable to the plaintiffs therefor, and the plaintiffs cannot recover. Ans. That is affirmed, under the circumstances of this case. I simply mean by that, that there could be a removal even on the owner’s own land under such circumstances of violence as would not be justifiable. But the circumstances of the case do not show anything of that kind.” [6]
    The jury answered the first question submitted as follows: “ The line runs in the middle of the lane.” The second question submitted they answered “Yes.” They also found a general verdict for defendant, upon which judgment was entered.
    
      The assignments of error specified, 1, the action of the court in not instructing the jury that the original use, or beginning of an adverse use, must have been tortious, and that if each successive use was but the peaceful follower of a peaceful commencement, no claim could be sustained to a presumed grant from such long continued use; 2 and 6, the answers to defendant’s points, quoting them; 3, the answer to plaintiff’s point, quoting it; 4, 5 and 9, the portions of the charge included within brackets, quoting them; 7, the action of the court in instructing the jury in its submission of the questions relative to the location of the line between the two farms, and the question of adverse user; instead of giving it binding instructions to find against an adverse user if they found the line to run along the middle of the road, by saying as enclosed within brackets, quoting it; and, 8, the action of the court in withdrawing from the jury the evidence relating to the use of this road for the purposes of Ley’s mill, in language enclosed within brackets, quoting it.
    
      Bassler Boyer, for plaintiffs in error.
    If the original entry and use were peaceable, then the owner of the one strip enjoyed the other in privity with the owner thereof, and in subserviency to the owner’s title thereto, and an adverse possession will not be held to commence in favor of an occupant or user, until the privity existing between him and the owner is severed by some unequivocal act. Cadwallader’s Ap., 81 Pa. 211; Root v. Com., 98 Pa. 175; Hall v. Matthias, 4 W. & S. 331; Bannon v. Brandon, 34 Pa. 267; 1 Addison on Torts, chapter 3, section 1, page 136, Dudley and Baylies’s edition.
    The failure to instruct the jury correctly is on the same plane as the error in Wenger v. Barnhart, 55 Pa. 300; Gregg Township v. Jamison, 55 Pa. 474; Bisbing v. Third National Bank, 93 Pa. 82.
    The court below should have directed the jury that, if it found “ that the line between the two farms was located in the middle of the lane, then the original and succeeding use of the two combined strips having, from the circumstance of the contribution of the half of the land by each owner, for the mutual convenience of both owners, shown the opening and use of the way by mutual consent, there was no tortious entry and therefore no beginning for the plaintiff’s claim of right by adverse use — at least not before the sale to Steiner, in 1875.
    Facts being established, their sufficiency to rebut a presumption of law is for the court, not for the jury. Delany v. Robinson, 2 Wh. 503; Reed v. Reed, 46 Pa. 243.
    The court was wrong in confining the jury to the evidence in the case upon the use of this way to what took place after 1855 or 1856. This was an assumption, without evidence, that the character of the use then was changed, and depriving the plaintiff of the effect of that which, on the face of the lane itself, by the testimony of the witnesses for the defence, would have explained away the presumption of a grant, and was clearly error. Nieman v. Ward, 1 W.& S. 68; Holden v. Winslow, 18 Pa. 160; Tenbrooke v. Jahke, 77 Pa. 392; Garret v. Gonter, 42 Pa. 146; Pa. R. R. v. Berry, 68 Pa. 279; Bisbing v. Third National Bank, 93 Pa. 82.
    The answer of the court to the defendants’ third point was a palpable misdirection, and had a confusing effect on the jury.
    The court was not warranted in instructing the jury, under the facts, as to the opening and use of the lane, that if it found for the plaintiff that the line ran in the middle of the lane they would then have to consider and find whether the defendants’ owners had gained a right by adverse user. Delaney v. Robinson, 2 Whart. 503; Reed v. Reed, 34 Pa. 243.
    The refusal of the court to submit to the jury the question arising out of the use of this lane for the purposes of Ley’s mill was manifestly wrong. The land to the middle of the lane having been contributed by the owner of the Ley, now Urieh, farm, for his use and the use of his customers to the mill, no right from adverse user could have attached to this half of the land. Root v. Com., supra.
    In 1850 the Legislature enacted the law against the acquisition of rights of way through unenclosed woodland. ' Act of April 25, 1850, P. L. 572.
    
      John Benson, not heard, for defendants in error.
    There is no evidence which shows that the defendant’s right to the use of the lane was ever disputed or any way interfered with; and if they did so use it, they thereby acquired a right of way over and through it of which they could not be deprived. Whether it was so used by them was a question of fact for the jury, and if they did so use it they have a right of way which cannot be obstructed or interfered with, and they had a right to remove the fence. Okeson v. Patterson, 29 Pa. 22; Esling v. Williams, 10 Pa. 126; Demuth v. Amweg, 90 Pa. 181; Haverstick v. Sipe, 33 Pa. 368.
    The use of the lane was in the ordinary manner, for the purpose of farming, and was open and notorious, and that it was adverse is presumed. Esling v. Williams, 10 Pa. 126.
    March 4, 1889.
   Per Curiam,

We have examined the nine assignments of error in this case and do not see our way clear to sustain any one of them. The learned judge below sufficiently explained the nature of the adverse possession which would give the defendants below a right of way over the land in question. He said such use must be “ adverse, continuous, notorious and undisputed.” The jury could not have misunderstood this. It is true there is some obscurity in his answer to the defendants’ third point. Had he stopped with the affirmance of it there would have been no room for criticism. The obscurity is in the qualification of it. We do not see that the jury could have been misled, especially in view of the general charge upon this point, which is clear and accurate. We find no such error in this record as would justify a reversal.

Judgment affirmed.  