author: Mr. Justice Mercur

text:
    Smith versus Johnson.
    1. One of two adjoining owners of land is not bound to put his fence on the line unless he occupies up to it.
    2. He may set his fence in on his own land and throw open to the public the land between his line and the fence, and thus be relieved from assisting to maintain a line fence.
    3. Building a fence entirely on his own land does not authorize the owner to remove any portion of a line fence, that had been previously erected.
    4. A line fence is the common property of the adjoining landholders, and the materials are so dedicated to the realty, that either removing them without the consent of the other is liable in trespass.
    5. The defendant built his fence near the line on his own land and removed part of a line fence between him and the plaintiff, leaving a gap into the plaintiff’s field. Held, that it was the duty of the plaintiff to protect his crops by building proper fences in a reasonable time ; otherwise the defendant would not be liable for damage done by the cattle of others.
    6. In closing the gap, the plaintiff had no right to extend his fence over on the defendant’s land, even a few feet — but by so doing became a trespasser ; the defendant had the right to throw down that portion of the fence on his land, and no action lay against him although his motives were malicious.
    7. Dysart v. Leeds, 2 Barr 488 ; Jenkins v. Fowler, 12 Harris 308 ; Stoner v. Hunsicker, 11 Wright 513, followed.
    May 20th 1874.
    Before Sharswood, Williams, Merour and Gordon, JJ.
    Error to the Court of Common Pleas of Juniata county: Of-May Term 1874, No. 76.
    This was an action of trespass q. c. f., brought April 14th 1873, by Richard Johnson against David Smith. The defendant and one John Thompson were owners of adjoining farms; the plaintiff was the tenant of Thompson.
    Thompson and the defendant had some dispute about repairing their partition fence, which extended southwardly from the northern corner of their farms to the north side of a turnpike which passed east and west through both farms, and then from the south side of the turnpike southwardly to the south corner of their farms at the Pennsylvania Canal. After some unsuccessful efforts to adjust the dispute, the defendant erected a fence on his land for the entire line and a few feet from it. In making this fence he used what he called his part of the original fence, and its removal left a gap into Thompson’s field at the turnpike. Thompson, or the plaintiff as his tenant, closed the gap by a fence along the turnpike and connected it with the fence made by the defendant on his land. The defendant took down the fence so made by plaintiff after it had been erected several times. Johnson alleged that by reason of the opening thus made, cattle, &ci, got into his field and injured his crops. The damages claimed were for the removal and appropriation of the original line fence, the injury to the field, crops, &c.
    The cause came on for trial December 5th 1873, before Junkin, P. J.'
    The plaintiff testified that he occupied Thompson’s farm by a written lease for three years ending in the spring of 1874 ; he testified also that the defendant had removed the fence, &c.; that by the removal of the fence he left a gap through which cattle went into the farm occupied by the plaintiff; the gap made was about three panels of fence; plaintiff then “ put in two posts and built a fence on Thompson’s land and alongside the fence built by Smith, until the two fences got so close and parallel, and then I stuck in poles to close up, so that whilst the poles came to the line, they did not go over it, and thus the cattle were prevented from getting in. * * * After I had built it up, a panel and a half were taken away; one sawed in two; about ten days after this the other half-panel disappeared. I built it up again, and the rails were taken away again in about one week. Then I made sixty-five new rails, and built a fence along the line, but on Thompson’s land seven panels, and that was thrown down. I built it up again; it was thrown down again; * * * in this way he threw it down five or six times.” Plaintiff testified that he had sustained a loss of $500 by cattle getting into his field.
    • Levi Myers testified: “ I live on David Smith’s farm; I have lived there since 6th March ; I threw down this fence four times; Mr. D. Smith told me whenever they should build on him to throw down the fence; the old line he showed me, and told me whenever they built across that line I should take it away; I took this fence away three times; Smith told me not to cross the line; I pushed the rails oyer; I touched no rails on Thompson’s land at any time; Smith lives three miles from this fence ; I think the points extended over about two feet, or may be more; when shoved over it left a gap that a cow could go through.”
    Thompson, the landlord, testified that after disputes and negotiations about the fence, he and the defendant had agreed upon what part of the line fence each should make, and they set in a stone to fix the point of division. There was evidence for the plaintiff by Dunn and others that there had been an agreement between Thompson and defendant fixing what part of the fence each was to make; also that the original fence had been some feet over on Thompson’s land, with other evidence in support of his'case.
    The defendant gave evidence that the fence built by him was entirely on his own land, and that the fence put up by plaintiff to close the gap connected with his and was on his land.
    The defendant testified that in 1864 he moved to this farm, and was told by Thompson that defendant’s portion of the fence to make was from the canal to some distance above the turnpike; that he had made and repaired that part. After plaintiff came to Thompson’s farm, he refused to repair the other part of the fence, and in consequence cattle, &c., got into plaintiff’s fields; defendant then took half of all the line fence which he had built, because he thought he had the right to do so. He then built the fence from the canal up to the turnpike on his own land and set it all on his own side; this left a gap at the turnpike. The gap was closed, and the plaintiff requested defendant to let it remain till he got his crops in. Defendant did not disturb it till plaintiff got his crop away, and then he notified plaintiff that he wanted all his ground. “ In the first place, what was on my ground I threw down; was very careful to lay nothing on their ground'; would take a panel down; he would build it up. He cut poles thirty feet long and I sawed them off; told Myers he should not go over the line, but only on our own land. Never threw that post fence down; left that stand. Where I sawed it down, a gap of four feet was left. I upset the fence that was on me; never threw anything down on Thompson’s land; sawed down on my land.”
    Levi Myers testified for defendant: “ Smith asked me to go to Johnson’s. Johnson asked if the fence might remain until the crop was out. Smith told him that he would let the fence stay until his crop was off.”
    The court charged:—
    “ We take the law to be this: that under Act of 11th March 1842, sect. 3, the improvers of adjacent lands may join in a division or line fence, and when either fails in his duty in keeping it in repair, the township auditors are made ex-officio viewers, &e. Notwithstanding this act, however, a man was not compelled to join in such fence, for if he chose he might build his own fence entirely within his own land, and the adjoiner cannot cross over, and connect therewith; and after adjoiners have thus united in the erection of a common division line fence, still if it afterwards be destroyed by flood, fire or decay, either party may recede within his own lines and build for himself. It would result from this, that whether, or not, when a common division line fence has been once established, and still exists, it is in the power of either party to build a new fence within his own lines — it is very certain that he cannot remove the existing fence, and place it within his own lines, without being guilty of a trespass, because he does not own it, except in common with his neighbor. In case of its destruction, each is permitted to do, what either could have done at the beginning, to wit, build his own fence upon his own land; but he must build with his own materials, and cannot use any part of the line fence. However, it is beyond all peradventure, that where such adjoining owners themselves agree to divide the line fence between them for repairs, each taking a section thereof, the removal of any part thereof by one of them upon his own ground, would be a trespass upon the land of the other.
    “Now, applying these principles to this case, if you find this was a line fence, and it is admitted to have been such for more than forty years, then Smith could not remove it back upon his own ground; he could not have done so, even in the absence of any agreement between him and Thompson, by which Smith was to keep that part in repair from pike to river; and Thompson from pike round to corner on the ridge. But, if you find such an agreement was made between them in 1864, as proved by Thompson and Dunn, by which the repairs were so divided, still less could Smith remove this fence. So that in either aspect of the case, Smith committed a trespass when he did so, and set it back from the line upon his own ground. In no aspect did more than half this fence belong to Smith, and this, too, an undivided half, so that every rail that Smith removed belonged to the extent of one-half thereof to Thompson, and their removal was an undoubted trespass.

      “ Johnson, the plaintiff, is the tenant of Thompson, the owner of the farm, and in possession; is the proper party to sue, and recover the damages; he can settle with his landlord for his interest.
    “ Then, as this removal of the fence by Mr. Smith was unlawful, he is liable for all the damage which naturally flowed from his wrongful act, to the plaintiff (Johnson) who was in possession <of the adjoining farm belonging to Mr. Thompson. These damages embrace the injury from the loss of the fence, thus transferred from the common ownership of both the adjoining owners, to Smith alone; also the injury to the crop of Johnson by the trespass of cattle, coming in through the gap, which the removal of this fence opened between the two farms, along the pike; in short, for all the direct and expected consequences arising from the wrongful act. True it is, however, that Smith is not liable for any damage or injury resulting from negligence on the part of Johnson in neglecting to repair the fence so as to close up the gap as soon as could reasonably be done — that is, if Johnson, after discovering that his fields of wheat and corn, or whatever else, were thereby exposed to the range of stock coming in, and trespassing, neglected to repair, or close it up, Smith should not be made to pay for such negligence. [But should you find that, as often as ■Johnson .did repair, Smith again destroyed it, and thus between these times stock got upon his crops, then Smith is clearly liable •to pay for such injury.] Again, the law in cases of this kind .adopts as the measure of damages, compensation quite equal to the injury, loss and trouble sustained; but this rule yields to circumstances, so that, in cases of wanton, malicious and aggravated trespasses, attended with acts showing an intention to do great injury, and permits exemplary or punitive damages to be given; that is such damages as punish the trespasser by making him pay more than the mere sum, which makes good the injury to the suffering party. [The original act of Mr. Smith, in removing this line fence, in itself, if done under a misapprehension of his duty, believing he had the right to do so, does not indicate a malicious purpose; but his subsequent conduct in removing, or causing to be removed, all the means taken by Johnson to preserve his crop, such as cutting off or throwing down the rails which very harmlessly pointed, if at all, but slightly, over the line, is difficult to explain, and inclines the mind strongly to the belief, that his motives were not commendable. All these things you must take into consideration, and assess such damages, as under all the circumstances you feel and believe to be just and proper under the evidence.]
    “Defendant’s counsel asks us to instruct you that, if this fence was only a division fence by agreement of Thompson and Smith, by each agreeing to keep a specific part in repair, and it is found, as a matter of fact, that Thompson had neglected his part to such an extent that repairs.became necessary, that then Smith could remove the fence within his own lines without being liable as a trespasser. But the facts show that the removed fence was not a partition fence by agreement between Smith and Thompson; it had always been the line fence between the two farms, and the utmost extent of the agreement proved by Thompson and Dunn was to fix each one’s part to be.kept up, [so that after all the question is simply one of damages.] How much shall the plaintiff recover for the injury he has sustained, as already explained. Besides, in eases of partition fences, the whole matter is regulated by the Act of 11th March 1842, which provides the manner of compelling each to do his duty, or paying the one who does the whole, so that in no aspect can this trespass be justified.”
    The verdict was for the plaintiff for $420.
    The defendant took a writ of error. He assigned the following errors:—
    1, 8, 4. The portions of the charge in brackets.
    2. “ The court misled the jury by reviewing and emphasizing the evidence of plaintiff as stated in the first specification of error, on the subject of malice, and failing to notice in any way the facts in evidence which disproved malice on the part of the defendant, as follows: That Johnson asked Smith to permit the gap to remain closed until he gathered his crop, and that Smith did as requested.”

      H:D. Parher, for plaintiff in error.
    The general rule to measure damages in tort is compensation: Seely v. Alden, 11 P. F. Smith 302. A man may abandon an old partition fence and build a new one on his own land: Painter v. Reece, 2 Barr 126; Rohrer v. Rohrer, 6 Harris 368. If the court charge so as to review those facts only which tend to establish one side of a case, it is calculated to mislead a jury and is error: Parker v. Donaldson, 6 W. & S. 132; Pennsylvania Railroad Co. v. Berry, 18 P. F. Smith 272.

      H. S. Doty, for defendant in error.
   Mr. Justice Mercur

delivered the opinion of the court, July 2d 1874.

Unless the plaintiff in error occupied lands up to the line of the adjacent owner, he was under no legal obligation to put his fence on the line: Painter v. Reece, 2 Barr 126; Dysart v. Leeds, Id. 488; Potts v. Everhart, 2 Casey 493. He had a right to set his fence on his own land, and throw open to the public the portion lying between the line and his fence: Painter v. Reese, supra; Rohrer v. Rohrer, 6 Harris 367. By so doing he was relieved from a continuing obligation to assist in the maintenance of a fence on the line. If the boundary fence had previously been built at the joint expense of the adjoining owners, it gave the plaintiff in error no right to remove any portion of it, on his withdrawing from an occupancy of the land, up to it. The fence had not only become common property, but was such a dedication of the materials composing it to the realty that he could not remove the portion made by himself without the consent of the other, and for such removal he would be liable in trespass : Stoner v. Hunsicker, 11 Wright 513.

The court then committed no error in denying the right of the plaintiff in error to remove a portion of the line fence. He was liable for the damages which the defendant thereby necessarily sustained.

A duty, however, was imposed upon the defendant in error to protect his crops by the building of proper fences within a reasonable time. If he neglected this duty, he cannot hold the plaintiff in error liable for the damage done by the cattle of others: Gregg v. Gregg, 5 P. F. Smith 227.

In protecting his crops the defendant in error had no right to extend his fence over on the land of the plaintiff in error a few feet. By so doing he in. turn became a trespasser: Dysart v. Leeds, supra. If he so extended it, the plaintiff in error had an undoubted right to throw down that portion of the fence and remove it from his land. This being a lawful act, no action would lie against him therefor, although his motive thereto may have been malicious: Jenkins v. Fowler, 12 Harris 308.

The court appears not to have discriminated between the act of the plaintiff in error in removing the line fence and his removal of the other fence subsequently built by the defendant in error. The learned judge appears to have ignored the testimony of both Levi Myers and of the plaintiff in error. They both testify that no portion of the fence built by the defendant in error was removed, except that which extended over on the land of the plaintiff in error. If the jury should find such to be the fact, there could be no recovery therefor. This must not be confounded with a case where the fence is on the very line, and the rails of the one extend a few inches beyond the line fence. Hence it was error for the court to take this from the jury and say to them, after all, the question is simply one of damages.” As to one branch of the case, there was clearly a question of the right to recover.

In the absence of. specific instructions having been asked for, we cannot say there is error in the second assignment; but, as we have shown, the first, third and fourth are sustained.

As we have not been furnished with a copy of the lease, we are unable to determine what property the defendant in error had in the rails composing the fence, or in the growing crops, and therefore give no opinion on the right of the defendant in error to recover for the whole property taken or destroyed.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Coleman and Wife et al. versus Eberly.
    1. A devise was to Eberly, “ that part of the McKinstry farm at present occupied and farmed by Brown, containing eight fields.” Parol evidence was admissible to show that the description “ containing eight fields” was a mistake, and that the part occupied, &c., by Brown contained nine fields.
    2. The evidence was that the part of the McKinstry farm occupied and farmed by Brown was nine fields. Held, that its applicability to the devise and the credibility of the witnesses was for the jury, under proper instructions as to their effect.
    3. “Thatpart of the McKinstry farm at present occupied, &c., by Brown,” was a description of the devise which had no other means of identification.
    May 13th 1874.
    Before Agnew, C. J., Sharswood, Williams, Merour and Gordon, JJ.
    Error to the Court of Common Pleas of Franklin county: Of May Term 1874, No. 71.
    This was an action of ejectment, brought May 29th 1872, by Charles A. Eberly against Daniel Clapsaddle, William Coleman and Susan R., his wife, in her right, for a piece of land containing 18 acres more or less.

      The land in dispute had belonged to Adam Hoke, deceased, under whom both parties claimed.._ By his will dated May 21st 1867, and proved June 12th 1869, he gave designated pieces of land to several of his children and then gave; “ To the children of my deceased daughter Ann Eberly, as follows, viz.: to Charles Adam Eberly, that part of the ‘ McKinstry' farm ’ at present occupied and farmed by William Brown, containing eight fields, &c. * * *
    “ I give and bequeath to my daughter Susan, married to William Coleman of Reading, the ‘ Stewart farm,’ at present occupied by Unger, and which at present includes a portion of the ‘ McKinstry farm,’ being cut off by the new road, and now attached to the said ‘ Stewart farm,’ it being understood that the land cut off by said road from the ‘ Stewart farm,’ is to go to and belong to the said Susan Coleman.” * * *
    He further directed his executors to sell and convey all his real estate not devised specifically.
    The plaintiff claimed that a ninth field, which was part of the McKinstry farm, and which he alleged was at the date of the will occupied and farmed by William Brown, passed by the devise to him.
    The case was tried- January 23d 1874, before Hall, P. J.
    The plaintiff having given the will in evidence, called John Brown, who testified that he had lived on the farm in 1867, with his father, William Brown; the disputed field was in corn in 1867; “ there were nine fields in the farm, including the cemetery field; only eight after that was taken off.”
    J. W. Witherspoon, a surveyor, testified that by a survey made according to the deed from McKinstry to the testator, the field in dispute is part of that farm.
    He gave evidence by several witnesses that the disputed field had been farmed in 1867, by William Brown: also that the land conveyed by the McKinstry deed included eight fields, with the field in dispute, the Stewart farm and other land, and that the testator owned two or three farms besides those specifically devised.
    A draft of the land was given in evidence, showing eight fields. and the field in dispute and' the “ cemetery lot.” It showed also the field which was cut off by a public road from the field in dispute and devised to Mrs. Coleman.
    Under objection and exception the defendants gave the following evidence:—
    That the field in dispute, called the “ Old Wilkey field,” before and after the year 1867, had been farmed vyith another farm of the testator. A lease dated March 22d 1865, from the testator to William Kiser of the “McKinstry farm,” for one year from the next 1st of April; also lease from the testator dated March 23d 1866, for one year from the 1st of April next to William Brown for “ the farm now occupied by Kiser excepting ten acres, it being sold to cemeteryit was to be farmed to the shares.
    William Brown testified that he lived on the farm leased to him from the spring of 1866 till the spring of 1868 ; that he farmed the field in dispute in 1867 ; he had rented the farm in the fall of 1865 to move there in April 1866, and had not rented the field in dispute; one field which he had rented the testator sold for a cemetery in the summer of 1866; the testator then told him to farm the field in dispute; he delivered to the testator one-half the corn raised on this field. When he rented there were nine fields; the cemetery field being cut off, reduced the number to eight; Kiser had the nine fields which had been agreed to be leased to witness, but not the field in dispute.
    The court directed the jury to find for the plaintiff.
    The jury so found.
    The defendants took a writ of error and assigned for error: that the court did not submit the questions of fact to the jury and directed the jury to find for the plaintiff.

      F. M. Kimmel, for plaintiffs in error.
    The question was the proper application of the description in the will to the farm, and parol evidence being necessary to make the application, the question was for the jury: Brownfield v. Brownfield, 8 Harris 59; Best v. Hammond, 5 P. F. Smith 409.

      J. McF. Sharpe (with whom was F. S. Stambaugh), for defendant in error.
    The circumstances of the testator, &c., are admissible to aid in the construction of a will: Postlethwaite’s Appeal, 18 P. F. Smith 478; Rewalt v. Ulrich, 11 Harris 389. A defective designation may be repaired by parol proof: Newell’s Appeal, 12 Harris 197; Domestic & For. Missionary Society, 6 Casey 425; Vernor v. Henry, 3 Watts 385. Latent ambiguity may be removed by parol evidence: Brownfield v. Brownfield, 8 Harris 55. The evidence as to what Brown occupied having removed the ambiguity the construction was for the court: Comfort v. Mather, 2 W. & S. 453; Best v. Hammond, 5 P. F. Smith 409 ; Wusthoff v. Dracourt, 3 Watts 240; Miller v. Springer, 20 P. F. Smith 269; Wallize v. Wallize, 5 Id. 242; Stebbing v. Walkey, 2 Brown’s C. Rep. 85.
   Mr. Justice Sharswood

delivered the opinion of the court, May 25th 1874.

Parol evidence was unquestionably admissible to show what was the “ extent of the McKinstry farm occupied and farmed by William Brown,” at the date of the will of the testator, Adam Hoke, and that the descriptive addition to the devise, “ containing eight fields,” was a mistake. If this was shown it would fall within the rule Falsa demonstrate non nocet. But it is very plain that this was a question for the jury. However clearly the parol evidence might establish the fact that the McKinstry farm occupied and farmed by William Brown at the date of the will contained nine fields — and not eight, as described — the credibility of that evidence, and the application of it to the case, must be determined by the jury, under instructions as to its legal effect by the court. We think, therefore, that the learned judge below fell into an error in directing a verdict for the plaintiff, which established that the McKinstry farm did consist of nine fields, and not eight, as described in the will.

Judgment reversed, and venire facias de novo awarded.

The case came on for trial again on the 24th of January 1874, before Rowe, P. J.

The evidence was substantially the same as on the first trial.

The plaintiff’s third point, which was affirmed, was :—

The words “ containing eight fields,” will not control the more specific designation which Adam Hoke used to describe the land devised to the plaintiff, embodied in the languageii that part of the McKinstry farm at present occupied and farmed by William Brown,” and these latter words, if they correctly described the land in dispute, at the date of the will, must prevail to give the plaintiff the verdict.

The defendants’ 2d and 3d points, which were refused, were:—

In the devise under which the plaintiff claims, the testator, has given a clear and unmistakable description of the land which he intended to give to the plaintiff by his will, namely, eight fields of the McKinstry farm then in the tenancy of William Brown, and as the plaintiff has failed to show that the testator was acting under a mistake, when he made that description, the plaintiff is limited to the eight fields and cannot recover.

When the jury come to apply the devise to the land, doubtful and ambiguous expressions must give way before those which are clear and unambiguous, and if the jury from the evidence find that the eight fields in the description are found in the plaintiff’s favor, witho'ut the one in dispute, then this fills the description and gives the plaintiff all he has any right to claim, and he cannot recover.

The court charged:—

The language of the will is : ‘ I give and bequeath to Charles Adam Eberly (the plaintiff) that part of the ‘ McKinstry farm ’ at present occupied and farmed by William Brown, containing eight fields.

[“ Now the construction of this devise is for the court, and we say that under this devise the plaintiff took all that part of the McKinstry farm at the date of the will occupied and farmed by William Brown, whether eight fields or more. The words, containing eight fields, do not limit the previous clause, but are a descriptive addition, as if the testator had said containing 200 acres.]

“ All we have to do is apply the description in the will to the subject of the devise, and give to the plaintiff this field if it was a portion of that part of the McKinstry farm occupied and farmed by William Brown on the 21st of May 1867, and to refuse it to him if it was not. That the testator describes the tract devised to the plaintiff as containing eight fields is a fact in the case bearing on the question of whether this ninth field was in the occupancy of Brown at the date of the will.

“ First, then, was this field in dispute, part of the ‘ McKinstry farm ?’ For the testator gives the plaintiff only ‘ part of the Mc-Kinstry farm,’ and under these words he cannot take lands which were not part of the McKinstry farm.’ How did the testator use the words 4 the McKinstry farm ?’ The plaintiff contends that he used them to describe the whole body of land conveyed by Mc-Kinstry to Hoke; and I think this is the most easily accepted interpretation. In another clause of the will he speaks of the ‘ Stewart farm’ as including a portion of the McKinstry farm. Now it is not disputed among counsel that this 18-acre field, indeed, the whole of the ‘Old Wilkey field,’ was conveyed by McKinstry to Hoke. This field in dispute then was a part of the McKinstry farm, if these words — the McKinstry farm — were used by the testator to mean the tract bought by him of McKinstry. But the defendants contend and have tried to show that this field is part of a larger field called by the testator the ‘ Old Wilkey field,’ which though bought with the other lands from McKinstry, was not regarded by the testator as any part of the McKinstry farm, as he was accustomed to use fhe words‘the McKinstry farm.’ This position of the defendants has not been established very satisfactorily to me, but may have been established to your satisfaction, and if you find it to be sustained by the evidence the plaintiff cannot recover.

“I incline to think that the testator used the words ‘McKinstry farm ’ to mean all the lands he had bought of McKinstry; and if so, then this field was part of the McKinstry farm, and the plaintiff will have taken one step toward a recovery. But only one; for he must go on and show that not only was the field a part of the McKinstry farm, but that it was, at the date of the will, occupied and farmed by William Brown. ‘ Occupied ’ is defined by Webster as ‘ held in possession.’

“ The plaintiff has called William Brown and others. The substance of their testimony is* * * After stating it the court proceeded:—

“ The defendants, on the other hand, have endeavored principally to. show that Hoke was familiar with his farms; that this field was not previously used in connection with the Eberly farm, which contained' the eight fields not in dispute; that it was not contained in the tract leased to Brown by the written agreement; that Hoke had given him another field for oats in the spring previous, but only temporarily; that Hoke and Anderson pastured this field in the fall of 1867, and that Anderson repaired the fences that year ; that this field was always used in connection with the Home,’ or ‘ Stewart ’ farms; that in 1866, when Hoke allowed Brown to take it for corn, it was under lease to Miller, and at the date of the will, was under lease with the Home ’ farm, to Anderson. And so I understand the testimony of Miller and Anderson to be.

If the evidence of these two witnesses is to the effect that defendants contend for, they may argue that at the date of the will this field was under lease to Anderson, and that he had therefore the possession and occupancy of it, though it was planted in corn at the time, by Brown; that though Brown was permitted to put a crop of corn in the field — for he says that it was given to him for that purpose only, and that though he pastured it, he did not think he had any right to do so — yet that Miller under his lease was in possession in 1866, and Anderson under his lease in 1867. This is a very strong point made by defendants. * * *

“ The case turns very much upon the word ‘ occupy.’ That this field was, at the date of the will, farmed by William Brown, is not a matter of contention among the counsel, but was it then in a proper sense, occupied — held in possession — by him ? To farm land is not necessarily to occupy it. If, for instance, the testator or his tenant had had a crop growing in this field, ready to harvest, and Brown had been permitted to cut it only, and had been so engaged at the date of the will, it could be said he was, at the date of the will, farming the land, but it could not be said that he occupied it. So in the same way, the question arises whether one who merely puts a field in corn for one crop, though he farms the land, can be said to occupy it. If the testator, in your opinion, attached this field to the other lands leased to Brown, so as to make it a part of the farm occupied by him, and i.t was so attached to and made a part of that farm at the date of the will, then it was occupied by Brown. But if Mr. Hoke, without attaching it to Brown’s land, only permitted him to use it for a special and temporary purpose, then, though farmed, it cannot be said to hare been occupied by Brown.” * * *

The verdict was for the plaintiff.

The defendants sued out a writ of error and assigned for error: the answers to the points and the part of the charge in brackets.

The case was heard in the Supreme Court, on this writ of error, May 12th 1875, before Agnew, 0. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.

J. Stewart (with whom was F. M. Kimmell), for plaintiffs in error. — The doctrine falsa demonstratio non noeet, applies only when the words of devise exclusive of the false description are of themselves sufficient to describe the property; reference being had to the situation of the premises and other circumstances pointing to the meaning of the description: Hubbard v. Hubbard, 15 Q. B. 341. If all the references to the devise are true, the court can not reject any of them.

J. Me.7). Sharpe (with whom was F. S. Stambaugh), for defendants in error, cited Vernor v. Henry, 6 Watts 193; Stebbing v. Walkey, 2 Brown Ch. Rep. 85.

Judgment was entered in the Supreme Court, May 24th 1875.

Per Curiam. — The devise of “ that part of the McKinstry farm at present occupied and farmed by William Brown,” is clearly a description of the thing devised. It has no other means of'identification. A devise of that part of the McKinstry farm containing eight fields, would not define the devise at all unless the McKinstry farm had but eight fields upon it in all.

■ It is clear therefore when there were more than eight fields in this farm, the devise could be determined only by ascertaining what part of the farm was occupied and farmed by Brown. If he occupied and farmed more than eight fields and we confine the devise to eight, what fields shall they be? Neither court nor jury could determine this, for it would be to make a will not to interpret it. It is manifest that the two descriptions cannot stand together, and we must take that which will give the will effect, which is by giving the devisee the part of the farm occupied and farmed by Brown. This was necessarily a fact for the jury, and was fairly submitted.

Judgment affirmed.