text:
    Pennsylvania Railroad Co. versus Weber.
    1. "Weber driving a horse and light wagon over a railroad on the of a county road was killed by a locomotive moving on the railroad. There was no express testimony as to whether he stopped and looked and listened before going on the railroad. Held, that the question of his negligence was for the jury.
    2. It is the duty of a traveller to stop and look and listen before crossing a railroad ; not so doing is negligence in itself.
    3. The presumption in the absence of other evidence is that the traveller stops and looks and listens, before crossing a railroad.
    4. In an action against a railroad company for injuring such traveller, the burden is on the defendants to disprove care, unless the plaintiff’s own ev' dence shows contributory negligence.
    5. Although from the uncontradicted evidence in this case it might have been inferred that if the traveller had stopped and looked and listened he would have seen the approaching train, it was for the jury to determine the fact.
    May 15th 1874.
    Before Agnew, C. J., Shárswood, Williams, Mercur and Gordon, JJ.

      Error to the Court of Common Pleas of Parry county: Of May Term 1874, No. 47.
    This was an action on the case, brought to January Term 1870 of the court below, by Sarah Ann Weber, widow, and Margaret Weber and others, children of George H. Weber, deceased, against the Pennsylvania Railroad Company. The cause of action, as set out in the declaration, was that the defendants, by carelessness and negligence in running their cars on their road, caused the death of Weber on the 28th of August 1869, at a public crossing by a county road.
    The cause had been tried before and a verdict for $2500 rendered for the plaintiffs. On a writ of error, the judgment on this verdict was reversed by the Supreme Court (22 P. F. Smith 27).
    The deceased was a baker, living at Duncannon, in Perry county, and carried bread, cakes, &e., for sale, in a one-horse wagon, to Marysville, about six miles east of Duncannon. He went three times a week, and had been doing so for about eighteen months. He travelled on the county road, which is alongside the railroad and crosses it several times between the two towns. On the 28th of August 1868 he was crossing the railroad from the south on the public road, in a “spring wagon” with one horse, the curtains being rolled up, when his wagon was struck by the locomotive of the “Harrisburg Accommodation” train, belonging to the plaintiffs, going east; his horse was killed immediately and himself so badly hurt that he died in a very short time.
    The crossing is the third east from Cove station, about a mile and a half from that station and is about 110 feet from the end of a stone wall built on the south side of the railroad; the wall is 1117 feet in length, extending 'westwardly. Until within 400 feet of the crossing, the county road is below the grade of the railroad; it then ascends a hill, and afterwards descends at a grade of six degrees to a level twenty-five feet from the railroad track, and passes on this level over to the northern side of the railroad. The whistling-post on the railroad was 1280 feet west from the crossing where Weber’s wagon was struck. The stone wall on the railroad and the increased noise from the rolling of cars passing between the walls have the effect of drowning the sound of the whistle.
    The principal question in the case was as to the contributory negligence of the deceased.
    The case was tried the second time, May 6th 1873, before Junkin, P. J.
    M. H. Foos, for the plaintiffs, testified that he was a passenger on the train; his attention was arrested, after leaving Cove station, by a sharp whistle and a sudden stoppage of the train about 200 yards east of the crossing; he looked out and saw part of the wagon hanging on the engine; he got out and saw the horse lying on the north side of the road, and Weber on the pilot under the head-light; he was not then dead, but was dead when the train reached Marysville, about a mile and a half from the crossing. Witness remembered no other whistling just before the accident occurred.
    A. Kauffman, who was a laborer for the company, testified that he was working on the road about a quarter of a mile east of the crossing, around a curve, so that he could not see the crossing; he heard one blast of the whistle about the time of the accident, hut had not heard any more. He went up to the crossing and found Weber lying on the pilot, dying.
    A. Ensminger, also a laborer of defendants, testified that he was working 300 or 400 yards east from the crossing; he saw Weber passing westwardly with his horse and wagon; “after a young man, Alfred Priesler (who was working with witness), had bought cakes from Weber, we started right away to work again. I was working with my face eastward, stooping down, tamping a tie, and I heard a sharp whistle ; I turned around and looked up the road, and I saw the engine strike the wagon and horse.” Witness did not hear any other whistling about that time; he was busy at work and paid no attention.
    P. Deitz, who was working with Ensminger, testified that he saw Weber passing with his wagon westwardly; witness and Priesler bought cakes from him, and they then went back to work; Weber started on; “I heard a whistle; I looked up; says I, 1 There goes the baker;’ this whistle was at the time the baker was going on ; the train and Weber were approaching each other at the time.” Witness did not take notice of the train till he looked up, and did not hear any other whistle or warning than the one he had mentioned. “ I was frightened lest the Dutch baker should get injured.”
    D. Rife testified that he had assisted in making measurements at and near the crossing; a person standing on foot in the county road before coming to the crossing, and 21 feet from the south rail of the south track, could see an engine coming 601 feet from the middle of the crossing; at 27 feet the smoke-stack of the engine could be seen 214 feet.
    Eli Branyan testified that he was in company with Rife when these measurements were made; that, standing 21 feet from the track, the engine was just one minute coming to the crossing from where the smoke-stack was first seen; and one-half minute when standing at 27 feet from the track; the trains he saw were long freight trains.
    J. B. Hackett, a surveyor, testified that from Marysville for the distance of 2 miles 246 rods westwardly, the county road crosses the railroad five times; from the second crossing, where Weber was killed, to the next above is 184 rods.

      The plaintiffs gave much other evidence for the purpose of showing that the whistle was not sounded or other warning given before the train approached the crossing; also that the view of the railroad for a considerable distance was hidden by underbrush and trees growing on the banks of the railroad.
    Eor the defendants, E. B. Taylor, who was a civil engineer in the employ of the defendants, testified that, standing in the middle of the county road, at a distance of 20 feet from the south rail of the south track, that track eonld be seen at a distance of 210 feet west from the crossing; the targets on the cross-switches could be seen 1087 feet from the crossing; at the whistling-post, 1245 feet from the crossing, the head-light of an engine could be seen; the head-light would be about 10 feet above the rail; in a wagon, with the horse’s head 2 feet from the south rail, an engine could be seen 3911 feet from the crossing; standing in a wagon on the summit of the county road, 117 feet back from the track at the crossing, the engine could be-seen at the whistling-post, and the whistle could be distinctly heard there. The first crossing from Marysville to the crossing where Weber was killed, measuring on the railroad, is 1286 feet; from the first crossing from Marysville westwardly the road is straight for about 4000 feet. A whistle at Cove station could be heard at the crossing where the accident occurred; the ringing of a good bell at Cove station could be heard there.
    S. H. Free, the engineer of the locomotive by which Weber was killed, testified that the train left Altoona on time in the morning of the day of the accident; ran its usual and schedule speed (23 7-10ths miles per hour); was on time at all the stations. The day was clear; the machinery was' all in good order; the track good and everything right; the fireman rang the bell at the two upper crossings after leaving Cove station; the bell was good; at the whistling-post above the crossing where Weber was killed, witness blew four blasts of the whistle for that crossing; “ about half way from that to the crossing below I saw the horse coming out on the road towards the track; I blew the whistle again some four or five blasts, sharp and quick, and a very short time after that the horse and wagon stopped on the track; as soon, as it stopped I pulled on the patent brake and reversed the engine; the engine was in that position until it struck the'wagon.” When he first saw the horse’s head it was within a few feet of the track. When the engine struck Weber, the horse stood with his hind feet, just across the north rail of the south track; Weber was sitting in the wagon nearer the front than the middle; he had hold of the lines pulling back, as if he was trying to back his horse; the front wheels of the wagon stood near the north rail of the south track; the shafts stood up alongside of the horse’s neck.
    H. Robinson, the fireman, testified much as the engineer; also that he rang the bell at the two upper crossings. He was sweeping the foot-board when the engineer sounded the alarm-whistle; he then looked on his side of the engine and saw the horse ; “ I then saw a man seated in the wagon, near the middle as near as I could tell by the appearance; the horse was stopped; it appeared to me he was trying to back the horse off the road, as the shafts were up alongside the horse’s neck, and the wagon had run on him; he remained'in that position until we struck him.” The engine had been reversed, the brake applied, and the speed of the engine had been slackened before he was struck.
    The defendants gave in evidence photographs of the road, of the ground where the accident occurred, the vicinity, &c., &c. They gave evidence also that the sight of the road was not obstructed by underbrush, and much testimony in answer to the plaintiffs’ case generally.
    The plaintiffs’ second point and the answer were:—
    Point: “ As the uncontradicted evidence in this case shows that Greorge H. Weber did not stop before arriving on the track, the verdict must be for the defendants.”
    Answer: “ We cannot affirm this point, but say again that the first presumption of law is that he did stop, look and listen. But this presumption will give way to the actual truth, that he did not do so. And we again say, that if the evidence satisfies you that had Weber stopped, looked and listened, he would not have been injured, then he was guilty of negligence, &c.; you should find for the defendants, even should you find that the engineer gave no warning of the approach of this train.”
    The court charged:— * * *
    “ First, then, was the death of Weber occasioned by the negligence, carelessness and impropriety of the Pennsylvania Railroad Company? That he was killed in the manner here mentioned there can be no denial or doubt, but whether through the company’s negligence or his own is the question. The company, on the day herein designated, were running their engine and cars on their own road, on the proper track of the said road, and at or about .the usual time of day. They had the right, beyond all question, to use their road, with their engine and cars, their engineers, conductors and servants, to carry passengers or freight, as they should deem right, subject only to the legal principles which govern and control the exercise of such rights.
    “ Weber, with his horse and wagon, on the same day and time, was travelling on a common highway, used and occupied indiscriminately by every person whose business or pleasure called him along it. He too had an unquestioned right to use this highway for his own purposes, and at such times as suited his pleasure or convenience, subject, at the same time, to the understood rights of others. The company, with their engines and cars, and the baker. with his horse and wagon, had their respective rights at this crossing, of such character that they should not molest or interfere the one with the other.
    “ These reciprocal rights created corresponding duties. The railroad company, notwithstanding their right to travel along and over their own road, were hound to exercise due care and diligence in the use thereof; and Weber, although on a road whereon he had a right to travel, was also under the obligation of duty so to exercise his right as not to interfere with the rights of others. With these rights and duties respectively they met at the crossing, and the fatal accident occurred. Weber was on the track of the railroad, and the engine and train passed along, breaking up the wagon and horse and killing him. ' Where was the negligence which occasioned this fatal collision ? Was there any on either side ? Was it one of those inevitable, unavoidable accidents, regarded in law as the act of God, with no one to blame ? In the absence of all proof showing negligence, the law presumes it to be unavoidable — that is, such as no ordinary prudence on the part of both Weber and the company could have guarded against. And this presumption continues to prevail until the proof establishes negligence or carelessness on the part of the company, and the evidence disclosing no negligence or carelessness on the part of Weber, then this balanced condition arising from the presumption that the accident was unavoidable gives way, and the company is ■shown to be in fault, becomes chargeable with the consequences of its negligence, and the plaintiffs may recover. [But if the evidence shows negligence on the part of Weber in approaching and crossing the track of the defendants’ road, and no negligence on the part of the company, then the blame and fault would be Weber’s own, and the law would not permit these plaintiffs to recover.] And still again, if the evidence shows that both Weber and the company were guilty of negligence or carelessness in crossing the track, so that both parties were to blame for the accident, the plaintiffs cannot recover, because he would then have contributed to the injury himself, and the law never allows a man to gain by his own wrong. * * *
    “ Then what is negligence ? It has been described as the want of that care which men of common sense and common prudence ordinarily exercise in like employments. This is a fair and plain definition of negligence, and it is important that you carry it with you in your examination of the testimony. To determine whether there was negligence on either side, and whether the defendants were negligent, a brief view of the evidence becomes .necessary.
    “ First, then, the accident occurred in open day, without the ..excuse of darkness. The public road runs close alongside of the .railroad; it could run nowhere else, owing to the bluff of the ..mountain and the Susquehanna river, and in a distance of four miles crosses the track of the railroad five times at least. Some places it runs below the level of the railroad and some places above. Where this accident occurred the road-(public), just below the crossing, runs above the level of the railroad track about ten and a half feet, and then advancing westward (and that was the direction in which Weber was moving), the road descends at about 6 degrees and comes to the level of the railroad at the crossing, 25 feet before reaching the crossing itself; and after passing the crossing the public road falls below the level of the railroad ; but this is not important, as Weber was killed at the crossing. Then from this fatal crossing looking westward, at a distance of 1230 feet, stands the whistling-post, and at this post, or in sufficient time, it is the duty of the engineer to sound the whistle. Then, at 110 feet from this fatal crossing, on the hill-side of the railroad track and on the same side of said track that the county road is on, below or eastward of the crossing, commences a retaining stone wall which runs westward a distance of 1117 feet, and is 7 feet high from the bottom of the ditch, which would make it 6 feet above the rail of the track, and the south rail is 6 feet from this retaining wall. Then add the fact that the railroad from this crossing westward is so nearly straight that a man standing on the centre of this crossing can see it westward a distance of nearly one mile, and the further fact, if believed, that in July or August 1869, the brush and weeds growing on the slope of the bank were cut back 20 feet from this stone wall, and you have the conditions under which Weber approached this crossing on his way from Marysville to Duncannon on the 28th August 1869, and was killed by a train running at from 15 to 20 miles per hour. Now let us define for you at this point what precaution and care the law requires at the hands of a traveller when he is approaching a railroad crossing or any dangerous point in the way he is journeying. In North Pennsylvania Railroad Co. v. Heileman, 13 Wright 60, Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, and others, it is distinctly announced that ‘ at the intersection of a railroad with a common road there are concurrent rights, and neither the traveller on the highway nor the company has an exclusive right of passage.’

      “2. As the movement of railroads is necessarily so rapid, and the consequences of collisions so disastrous, it is the duty of the traveller on the highway, to look out, when approaching its intersection with a railroad, for trains and approaching engines, to stop and listen; and if he fails to take this precaution, he is guilty of negligence, and cannot recover for injuries sustained by a train coming in collision with him. Precaution, looking out for danger, is therefore a duty. Not looking for a coming train is not merely an imperfect performance of duty, it is an entire failure of performance, and negligence in itself. And in Hanover Railroad Co.
      v. Coyle, 5 P. F. Smith 396, it was wisely held by the Supreme Court that a peddler approaching a railroad at a point in a town where he had often, crossed muffled in his coat within the covered top of his wagon, taking no notice of the railroad, and driving slowly upon the track without stopping or looking out, was guilty of negligence.
    “ [Now then, it becomes important for you to inquire, what were Weber’s opportunities to see the train approaching which struck and destroyed him. ITad he stopped, looked and listened, because if the evidence satisfies you that, if he had stopped, looked and listened, the accident would have been avoided, — then you cannot find damages.] Such failure on his part would be negligence, and there can be no recovery by the plaintiffs. Then what were Weber’s opportunities to see and hear this train? It is an important fact, that he was moving westward, while the train was moving eastward — it was coming towards him — and thus his chances to see and hear were much better than if the train had been approaching in his rear. The road or ground over which Weber must necessarily have passed, at a distance of about 110 feet from the crossing, was undoubtedly some 11 feet above the level of the railroad bed; his wagon would elevate him still higher ; the slope of the hill-side west of the crossing, along and over which he must look for the approaching train, was about 9 feet above the rails of the track, and if John Whitzel is believed, the bushes along the slope, back of the stone wall, were mowed off in July or August in same year; and George W. King, John Whitzel and others, if correct, saw the smoke-stack and engine as low down as the head-lights from the summit of the high ground aforesaid, over which, as before observed, Weber must have passed — so far up the road as the whistling-post — 1230 feet from crossing. And it is further established by actual experiment, that by standing one foot from the track, and even 20 feet back from it, an engine was visible as far up as the whistling-post, a distance of over 1200 feet. [Add to this the fact that Weber was accustomed to travel-ling this road, and then determine whether any ordinarily prudent man, exercising reasonable watchfulness and care, would have been able, by stopping, listening and looking, to have seen this train approaching, and avoided the calamity which befell Weber; and if he could, and you believe that Weber neither stopped, listened nor looked, but, on the contrary, advanced recklessly and carelessly upon this crossing, then, whether the whistle was blown or sounded by the employees of the company on the train or not, he (Weber) was clearly guilty of negligence, and these plaintiffs cannot recover.] In determining this point you will look at all the circumstances of the casu, and if you find that Weber was negligent, careless and reckless in approaching this crossing, then you need go no further, but find for the defendants.

      “ It is testified that from top of hill east of crossing, in county-road, 117 feet from south rail of south track of railroad, at the fatal crossing, the view of a man standing on this summit reaches westward up the railroad to the curve, a distance of over 3900 feet — to near four-fifths of a mile — over three-fourths of a mile ; then, if Weber, when crossing this hill, and when on its summit, or at any point along the summit, had looked as he in law was bound to do, he could not have failed to see any approaching train' for the distance of over three-fourths of a mile in front of him and above the crossing; and still further, from the summit of this hill, it was only 117 feet down the hill, around the curve of county road, until he would reach the south rail of south track of railroad, and if, when he had passed over 100 feet of this 117 feet, and within twenty feet of the said south rail, and it would only have taken him 17 seconds of time, moving at the rate of four miles per hour, to have gone over these 100 feet, and he had then stopped and looked, as in law he was bound to do, he could have seen an engine at the bone factory, or whistling-post, and along from there to crossing, a distance of over 1200 feet. Now do you believe, under this state of facts, and the facts are not contradicted, that any ordinarily prudent man would have failed to see and avoid the calamity which befell Weber? Can it be possible that, had he looked, he would have been injured at all ? You are not at liberty, under the oaths you have taken, to shut your eyes to this proof; If you believe this, it is binding on you, and you must give the fact full play in determining the issue. In the midst of vague and loose observations, made by men called as witnesses to prove what can be seen and what cannot be seen from the summit of the hill in the county road, and near it, we turn with sensations of relief to one of the views taken by an artist, with a camera, an artificial but unerring eye, and which is utterly incapable of misrepresenting, either by mistake or design, and you will there see that by a view taken on the side of the county road, on summit of hill, east of crossing over which Weber passed, at three feet from the ground, the eye can see up the railroad track as far as the cross switches, a distance of over 1245 feet from the crossing. There can be no mistake about this testimony, and it conclusively establishes the significant fact that this crossing affords advantages to the traveller for looking west in order to observe trains. Then how can it be truthfully said that this is a dangerous crossing— with its approaches commanding at least 1300 feet of the track itself, and probably a view of trains for over three-fourths of a mile? Now, had Weber stopped and looked, as he was bound to do, is it probable that he would have failed to see this train ? This is for you.
    “ Then, was this view obstructed in 1869 by bushes ? Several witnesses for the plaintiffs, Mr. White and Mr. Moore, and perhaps others whom I do not remember, speak vaguely of bushes, but don’t say where they were ; whereas several witnesses, George W. King, John Wheitzel and R. Q. King, prove that these bushes on slope of bank west of crossing have been mowed off year by year for many years, as far back as twenty feet, counting from south rail of south track of railroad, and some of these men say they had this done, and all of them were laboring about this part'of the road more or less at the time of the accident. Now, is this evidence more satisfactory than the mere passing observation of men whose business did not call upon them to see and observe ?

      “ Then, as to the character of the witnesses. The law presumes that all witnesses speak the truth. In actions against railroad companies, it is alleged, their employees generally swear for the road, but it is just as true that others, not employees, generally swear about as vigorously against these companies.
    “ But if the evidence fails to satisfy you of the carelessness of Weber, then you must go further and inquire whether the company was negligent of its duty. Now, it was the duty of the company through its employees conducting .this train, to have sounded the whistle at a reasonable distance above this crossing, and there was a whistling-post 1280 feet from this crossing, and here it was the duty of the engineer to blow. Did he do it ? The evidence on this point is very contradictory. On the side of the defendant we have Samuel II. Free, the engineer, who swears positively that, when about this whistling-post, he blew several blasts. II. Robinson, the fireman, swears to the same thing, and Andrew C. M’Cully, a gentleman of high integrity, who was on board the train, swears that the usual alarm-whistle was blown at the whistling-post. On the other hand, Isaac Ream, Mary Smith, Michael Foose, Adam Kauffman, Frank Yon Flie, Henry Gamber, A. W. Ensminger, Perdits, Isaac Baker, Anna Jones, Mrs. E. Smith, William Sayler and Robert J. Shearer, — who seem to have had opportunities of hearing, and who testify that they heard no whistling as a signal at the crossing. As a general rule, affirmative evidence is more reliable than negative, but you will fully consider the strength of this negative proof — looking at the opportunities these negative witnesses had of hearing; the probabilities of their taking notice of a whistle, and if on the whole, the force of this evidence outweighs the positive, you will act accordingly. You will in this connection, however, consider that, where persons are busily engaged in working, talking or thinking, they often fail to notice the striking of a clock, even in the room in which they may be, and experience teaches us all, that the sound of the locomotive whistle is scarcely noticed by persons accustomed to healing it, or by persons who are not interested in it at the time. The evidence of the negative or non-hearing witnesses would have to be very satisfactory to my mind, ‘before I could permit it to overthrow the positive testimony of three witnesses, or even one reliable witness, who swears they or he did hear; but this is a matter for you to pass upon, and to you we submit it.
    “ Then, should you find that, in point of fact, the whistle, as an alarm for this crossing, was sounded, we see nothing in the case to take it out of the usual rule of law, that where the company operating a road, such as this, has not been guilty of negligence, and there occurs a disaster, it is not responsible. But should you find that the defendant did not blow the alarm-whistle at all, or in such manner as to give sufficient warning, and you should further find that Weber was not guilty of negligence in approaching this crossing, then the defendant is liable, and it will become your duty to assess the damages.” * * *
    The verdict was for the plaintiff for $4166.66.
    The defendants took a writ of error and assigned for error the answer to their second point and the parts of the charge in brackets.

      L. W. Sail (with whom was O. I. T. Mclntire), for plaintiffs in error.
    The judge having conceded that the facts were not contradicted should have charged that Weber was guilty of negligence. Whether the accident would have been avoided if Weber had stopped, looked and listened, his failure so to do was the nonperformance of a positive duty, precluding the right to recover. The judge so instructed the jury, but destroyed the value of his instruction by the qualification that the evidence must not only satisfy them that he did not stop, look and listen, but that if he had done so the accident-.would have been avoided ; thus leaving the fact of negligence to the-jury on an immaterial point: Penna. Railroad v. Beale, 23 P. F. Smith 504. Charging that if Weber was negligent and there was no-negligence on the part of the company, would allow the jury to find for plaintiff if the company was negligent without regard to his conduct.

      0. A. Barnett (with whom was O. S. Smily), for defendants in error.
    The law presumes that Weber did all that was required of him : Lehigh Valley Railroad v. Hall, 11 P. F. Smith 361; Penna. Canal Co. v. Bentley, 16 Id. 30; Allen v. Willard, 7 Id. 374; Cleveland & P. R. R. v. Rowan, 16 Id. 393.
   Mr. Justice Williams

delivered the opinion of the court, February 1st.1875.

This case was here on a former writ of error, and was reversed for the admission of irrelevant and improper evidence: 22 P. F. Smith 27. It now comes before us, after a second trial in the court below, for the correction of alleged errors in refusing to charge as requested, and in the instruction given to the jury. The action was brought by the widow and children of George fi. Weber, who was killed at a public crossing of the defendant’s road, by a passing train, to recover damages for his death. It was unquestionably the decedent’s duty, as the court below in effect charged the jury, to stop and look and listen for approaching trains, before attempting to cross the track of defendant’s road; and if he failed to observe this precaution, his failure was not merely evidence of negligence, it was negligence in itself. But it does not follow that he omitted his duty in this respect, because he was killed by a passing train. Nor was it incumbent on the plaintiffs, in order to recover damages for his death, to show affirmatively that, before attempting to cross the track, he did stop and look and listen. The common-law presumption is, that every one does his duty until the contrary is proved; and, in the absence of all evidence on the subject, the presumption is, that the decedent observed the precautions which the law prescribes, before he attempted to cross the defendants’ road. It is true, that when the plaintiff’s own evidence discloses contributory negligence, there can be no recovery; but if it does not, the burden is on the defendants to disprove care; and in such case the question of negligence is for the jury. Does, then, the plaintiffs’ evidence show that the decedent was guilty of contributory negligence in not stopping to look and listen for the train by which he was killed ? If so, the court should have given a binding direction to the jury to find for the defendants. But, in the absence of such evidence, it would have been error for the court to withdraw the case from the jury, and determine, as matter of law, that he was guilty of negligence, which contributed to his death. Whether, then, the court should have aflirmed the defendants’ second point without qualification, depends upon the character of the evidence of which it was predicated. If] as suggested in the point, the uncontradicted evidence in the case shows that the decedent did not stop before driving on the track, then he omitted a plain and positive duty, and the court should have declared its omission negligence, as a matter of law. But if there was no direct and positive evidence, showing that he did not stop before driving on the track, then the learned judge was clearly right in refusing to withdraw the case from the jury, and in saying, as he did, “ We cannot' affirm this point, but say again, that the first presumption of law is, that he did stop, look and listen. But this presumption will give way to the actual truth, that he did not do so. And we say again, that if the evidence satisfies you that had Weber stopped, looked and listened, he would not have been injured, then he was guilty of negligence, and you should find for the defendants, even should you find that the engineer gave no warning of the approach of the train.” It is apparent, from the answer and from the whole tenor of the charge, that if the court erred in not giving the instruction prayed for, the error arose from a mistaken view of the evidence, and not from misapprehension of the law. Does the nncontradicted evidence in the case show that the decedent did not stop before driving on the track ? We have looked through the record and have not been able to discover any direct and positive evidence that such was the fact. The decedent was returning in a baker’s wagon from Marysville, where he had been to supply his customers with bread, and was seen by the plaintiffs’ witnesses, who were at work on the railroad, about twelve hundred feet east of the crossing where he was killed. He stopped and sold them some cakes, and then drove on. One of the witnesses, Alfred Ensminger, in answer to the question, “ What was the next thing that attracted your attention after the baker started on his way westward ?” said : “Well, after a young man had bought the cakes from him, Alfred Priesler, we started right away to work again: I was working with my face eastward, stooping down, tamping a tie, and I heard a sharp whistle; I turned around and looked up the road, and I saw the engine strike the wagon and horse.” The other witness,?. Deitz, said: “I bought some cakes from him, me and Priesler. After the purchase of the cakes, we went back to work again, and he started on.” In reply to the question, “ Where did you next see him ?” he said: “ Well I heard a whistle ; I looked up ; says I, ‘ there goes the laker,’ we just call him the baker. This whistle was just as the baker was driving on, as near as I can tell. The train and the baker were approaching each other at that time; I did not know that the train was coming until I looked up; I did not hear any but the one whistle. In answer to the question put to him on cross-examination, “ Was the horse close to the rail when you saw him ?” he said: “ I could not say that positively, because I was scared; I could not say how close he was ; I could see the horse though.” On behalf of the defendants, Samuel H. Free, the engineer of* the train, testified as follows : “When we got to the end of the stone wall, or near about there, I believe the whistling-post stands near the end, I blew the whistle four blasts for the next crossing below. About half way from that (the whistling-post) to the crossing below, I saw the horse coming out on the road towards the track ; I blew the whistle again some four or five blasts, sharp and quick ; and a very short time after that the horse and wagon stopped on the track ; as soon as they stopped, I pulled the patent brake, and reversed the engine; the engine was in that position until it struck the wagon; I suppose the horse’s head was within a few feet of the track when I first saw it; when I first saw the ho.rse I was about half way from the whistling-post to the crossing, as near as I can tell; when I struck Weber the horse stood with his hind feet just across the north rail of the south track, as near as I can tell; Weber was sitting in the wagon, not quite in the middle of the wagon, a little nearer to the front than the middle ; when I got close enough to him, I saw he had hold of the lines, pulling hack, as though he was trying to back the horse; I think the two front wheels stood near about the north rail of the south track ; the shafts stood the same as a horse backing or trying to back, standing up along side of his neck.” Henry Robinson, the fireman, testified : “ My attention was called first as I was sweeping off the foot-board, by an alarm-whistle; I looked on my side and saw the horse; I saw a man seated in the wagon near the middle, as near as I could tell by the appearance; the horse was stopped; it appeared to me that he was trying to back the horse off the road, as the shafts were up alongside of the horse’s neck, and the wagon had run on him; he remained in that position until we struck him.” This is the substance of the testimony on the subject, and so far from showing that the decedent did not stop to look and listen before driving on the track, it shows conclusively that there was no direct and positive evidence on the subject, one way or the other. No human eye saw him from the time he sold the cakes to Deitz and Priesler until the alarm-whistle sounded, when he was seen driving upon the track, his horse’s head within a few feet of it, and the engine not more than six hundred and twenty feet from the crossing where the collision took place.

Whether he stopped, or not, before driving on the track, is matter of mere inference or conjecture, and cannot with certainty be known. On the one hand is the presumption that he stopped to look and listen. He was well acquainted with the crossing, having been accustomed to drive over it every day, and must have known the time at which the regular trains passed. He had the highest motive to take the necessary precaution to insure his safety, and the presumption is that he did. On the other hand, it may be inferred from the circumstances, that if he had stopped to look and listen he would have seen or heard the approaching train. But whether he stopped, or not, it was the province of the jury to determine as a question of fact, and not a matter of law, for the decision of the court. The evidence from which the decedent’s negligence may be inferred, is not só clear and convincing in this case as in The Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, and The Pennsylvania Railroad Co. v. Goodman, 12 Id. 329, in both of which it was held, notwithstanding our dissatisfaction - with the verdicts, that the question was rightly left to the jury. Manifestly the court could not have given the instruction prayed for, without invading the province of the jury, and running counter to the whole current of our decisions in cases of negligence. If, then, there was no error in refusing to affirm the defendants’ second point, did the court err in saying to the jury in answer to it, that if the evidence satisfies you that had Weber stopped, looked and listened, he would not have been injured, then he was guilty of negligence, and you should find for the defendant. Whether he stopped, or not, was, in the absence of any direct and positive evidence on the subject, a matter of inference from all the circumstances of the case, and what was the reasonable and proper inference was for the determination of the jury. What possible harm then could the instruction complained of do the defendants ? On the contrary, what stronger argument could have been made to the jury to show that he did not stop, for if they believed that he would not have been killed if he had stopped to look and listen, then the natural and pregnant inference would be that he did not stop ; and if so, he was guilty of contributory negligence, and the plaintiffs were not entitled to recover. Nor was there error in charging that if the evidence shows negligence on the part of Weber in approaching and crossing the track of defendants’ road, and no negligence on the part of the company, then the blame and fault would be Weber’s own, and the law will not permit the plaintiffs to recover.

This instruction was clearly right, and it could not, as contended, have misled the jury by leading them to believe that they could not find a verdict for the defendants unless they found that the company was not guilty of negligence, although they should find that Weber was, for in the very next breath the court told the jury that if the evidence shows that both Weber and the company were guilty of negligence or carelessness in crossing the track, so that both parties were to blame for the accident, the plaintiffs cannot recover.

The very able and earnest argument of the counsel for the plaintiffs in error has failed to convince us that the evidence in this case shows such contributory negligence on the part of the decedent as made it the duty of the court to declare it such as matter of law, or that there was any error in the instructions given to the jury. On the contrary, we are satisfied, upon a review of the whole record, that the case was well tried by the learned judge, and that his charge contains a clear and correct statement of the law arising upon the evidence. If the jury erred in their finding, it was from no failure on his part, to draw their attention to the true attitude of the case under the evidence, and to that view of it which tended to show contributory negligence on the part of the decedent.

The court could not have gone further, without trenching on the province of the jury, whose duty it was to determine, under all the circumstances of the case, whether or not he was guilty of contributory negligence.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Burke versus Hammond.
    1. When ejectment is sought to be maintained against an intruder by possession alone, it must be an actual possession, which must be evidenced by acts indicating permanency of occupation, such as residence and cultivation.
    2. Where the possessor leaves the premises, his intention to return will not continue his possession unless there be some indication upon the property which will give notice of his intention, otherwise abandonment will be presumed.
    3. Where one enters on a tract of land claiming the whole, his occupancy of part will make his possession co-extensive with his claim.
    4. A continuous claim of land, payment of taxes for twenty-one years and the exercise of such acts of dominion as the character of the land warrants, will raise a presumption, as against an intruder, of a grant from the warrantee.
    5. Occasional invasions of the property, amounting to mere trespasses, and occasional payment of taxes, will not raise such presumption.
    6. Testimony of a witness that he saw amongst the claimant’s papers a deed for a tract to the claimant, without saying by whom it was executed or when, was inadmissible, the deed being lost, to show title in the claimant or raise the presumption of a grant.
    May 15th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Bedford county: No. 28, to May Term 1874.
    This was an action of ejectment, brought October 20th 1869, by Essington Hammond against Josiak 0. Burke, for a tract of 160 acres of land in Union township. The defendant took defence for 145 acres and 10 perches of the tract claimed.
    The case was tried December 13th 1872, before Rowe, J.
    The plaintiff gave in evidence, warrant dated June 1st 1763, to James Johnston, for 300 acres, called the Two Runs or Five Springs; survey September 8th 1797for 749|-acres. This survey covers the land in dispute.
    After evidence of search for a deed for the Johnston warrant to Dr. Peter Shoenberger, under whom plaintiff claimed, and of inability to find it, plaintiff, under objection and exception, then read the deposition of Michael Reed, who testified: “ I surveyed James Johnston last time in 1859; surveyed it in Dr. Shoenberger’s lifetime ; examined his papers; his land-book laid before me; among those papers there was a deed for the James Johnston tract and the Edward Evans tracts; I saw those deeds among the land-papers time and again; in McCormick’s time I made a thorough examination of those papers; he also had a commissioner’s deed for part; the deed I saw embraced 749 acres; the two deeds were recorded at Bedford; I think they were from Goldsboro; Dr. Shoenberger’s deed for the Johnston was before the Goldsboro; before the Evans title; he had commissioner’s deed for part of the Johnston; it was marked on the ground; I can’t say who deed was from; I think it is on record; for 749 acres. It was from one of these Philadelphia men; I think deed is recorded; it was a regular drawn up deed ; it said ‘grant, bargain and sell;’ he had a deed for Croyle Improvement, after it was vacated and sold at treasurer’s sale; do not know from whom, but suppose the man who bought it at Croyle’s sale. I saw that McCormick had these deeds in 1859; might have seen them about 1840;' first time saw deed and assignment to Dr. Shoenberger.”
    Also, under objection and exception, the deposition of Matthew Simpson, who testified: “At furnace fifteen years; Bice lives in it now; different men there for different years; Martin Dively there when I first came there; John Fetters next; Michael Reesey, then Bice; occupied ever since I came there; no coaling on Johnston since I came there; know lines; around three times; cleared land near to Burke’s house; cleared before I came there. Think were written leases between Dively, Fetters, Reesey and Bice; I leased as manager; did not specify number of acres; mentioned farm cleared and land that was not cleared; part of land given as unseated; all given in as seated; tenants to pay taxes on the part known as that farm ; run line across to pine; a marked line; tenants did not occupy part over next line; we claimed all the land-; have heard of the ‘ Croyle Improvement; ’ we farmed these fields on the disputed part in 1858 and 1859; farmed in wheat; Mr. G-ochenour put it out under Bice, and Bice leased it from me; no actual residence on this part of land after Croyle till Burke entered; searched; could not find deeds; were in hands of Pollard McCormick; then of Coys; P. McCormick is dead; Johnston tract is part of Sarah Furnace lands; I never saw deed for Johnston tract; Mr. Reed had access to papers at house that I had not; he was making a chart or draft of the lands; I saw the Land Book; it is lost; tax paid.”
    Plaintiff gave in evidence, patent to Dr. Shoenberger for 4531-acres, surveyed on warrant to Edward Evans; this land being within the lines of the Johnston survey.
    Dr. Shoenberger’s title, if any, to the land in dispute passed by his will to D. 0. McCormick and other McCormicks, and from them by subsequent conveyances to the plaintiff.
    D. Gochenour testified: “ I first knew the land on which defendant lives in 1819; no one lived on it then; Croyle lived a mile away on another tract where Boyer now lives; when I first came there a small field was cleared on the disputed tract where Burke lives; Croyle, after he helped to move his crop off of that piece, got hurt and died in that year, 1819 ; it was then called the Widow Croyle Improvement; she had it farmed for several years by others, and then I farmed it for her for three years, in 1827— 8-9; I don’t know whether it was farmed after that; Shoenberger got possession of it in 1832, and began to chop in the fall; chopped in ’33 also, and then coaled in the summer; the first job that was coaled for Sarah Furnace, on the ridge part, was coaled on this land; Shoenberger had the timber taken off from year to year, until it was all gone; it laid open, commons, while they were hauling coal for it, until 1858. In 1858 Samuel Bice got permission from Sarah Furnace to clear it off and fence it up; then, for two years, 1859-60, I farmed it for him: that was the end of our work there; no one ever lived on that part now in dispute before that; in 1820 or 1821 I know that Frederick Stambaugh was living on the Evans tract; he lived there a good while; ten or twelve years any how; Martin Dively was there next; he lived there a small lifetime; from the time of his marriage until his children were grown up; John Feathers came in next, who was there one or two years; next was Michael Reesey, who remained from four to five years; after Reesey, David Dickey, who lived there two years ; the house was burnt, and no one lived there for one year; then Samuel Bice, who is there now; has been there seven or eight years.”
    (All these tenants on the Edward Evans tract, it is admitted, were under Dr. Shoenberger or his predecessor in title.)

      “ Defendant’s house is four or five rods away from the widow Croyle field, the same field I worked in 1858 and 1859; Bice added about one acre in making fence; I know the Edward Evans tract; it lies on the west side of the disputed land; I know the Ohristly Bouser tract; it adjoins the land in dispute on the north side; the Bouser tract separated the John Croyle residence and improvement from the little field; they were about a mile apart; I know the Johnston tract and where defendant now is; from 1819 to 1861 there never was any residence or house on the land in dispute, unless you call colliers’ cabins, houses; from 1819 to 1861 there was no cleared land on this tract in dispute, except the little field there in 1819; then grain was growing on it, put in by Croyle; from 1829 to 1858 the field was not cultivated, but a perfect commons; fence gone; ■ in fall 1833 Dr. Shoenberger commenced coaling it; no possession except the colliers; no cultivation until 1858; no building on the Johnston tract, except what was on the Evans part of it; Dr. Shoenberger coaled the Johnston tract until it was all cut off; the land was heavily timbered; the first job was cut on the land in dispute; the second year they cut the Bouser tract and part of this.”
    Isaac Pressel testified: “I have known the Johnston since I was ten or twelve years old; my father lived on the adjoining tract; the Johnston was called in early times the Big Survey, Dr. Smith’s land and Pine Ridge; all that land was known as Pine Ridge; Croyle claimed two or three acres, and was called Croyle’s Improvement, where defendant now is; Croyle did not live there; after Shoenberger got it and commenced chopping and coaling, we called it the Furnace land; Dr. S. cut the timber off the part where defendant now is; two or three years after the furnace was built, in 1832; he continued cutting until he had cut the whole pine ridge off.”
    Jacob Kissinger testified: “ I have known the land where defendant lives forty years; Dr. Shoenberger had it in possession; it was coaled by Shoenberger; the land belonged to Sarah Furnace; it was called the Johnston tract, Pine Ridge; I know defendant’s improvement; it was coaled about forty years ago; the second year of the furnace.”
    Michael Walter testified: “I have known this disputed land tract since 1836; I cut timber upon it for Dr. Shoenberger about that time for coaling; the cutting was done for Sarah Furnace; I think the Burke Improvement was made in 1861; I helped to survey the James Johnston three years ago; the Burke Improvement is inside those lines; the defendant’s house is close to the line of the Johnston and Christly Bouser; I only cut on that land in the winter of 1836; January, February or March 1836; I helped to cut on this land in dispute; towards the Evans; the Bouser tract lay north of the tract I cut on; Shoup abandoned the Burke Improvement once; when he went to the army; Burke is there now; has been there about eight years or more; he lives there and cultivates the land.”
    Samuel Bice testified: “ I live on the tract called Johnston and Evans; I have been there about eight years; I first rented from the McCormicks, then from Mr. Hammond; before me, David Dickey lived there; I have known the land in dispute for thirty years; I rented a field, and fenced it, for two crops, from David McCormick, in 1858 and 1859; in 1860 we cut and hauled the last of the crops away; I left the field fenced; the balance of the tract had been cut and coaled before I knew; I made rails on the Burke Improvement for David McCormick some four or six years before 1858 ; they were hauled to Sarah Furnace ; the land was known as Shoenberger land, attached to Sarah Furnace; I live within the lines of the Evans; this land was cut and coaled in 1839; all cut off when I came there; most of the rails were made on the Bouser, over the line between the Bouser and Johnston; near the line; some on both sides; they claimed all the land; the Bouser tract also; in 1858 no fence, when I went there to this land in dispute; no appearance of a fence; nothing in the field; the field four or five acres ; Goch'enour did the work for me; the field was empty; no farming done from the time I took my last crop in 1860, until Shoup went there ; I never saw Shoup there.”
    There was other evidence of the same character. Also; that by survey in 1869, it was ascertained that west line of defendant’s improvement corresponded with the Evans line east.
    There was evidence also to show payment of taxes by Dr. Sboenberger and bis successors including tbe plaintiff, in different years from 1835 to 1859.
    Tbe defendant gave evidence that Dr. Shoenberger bad rented tbe Evans tract and Sboenberger coaled tbe remainder of what was within tbe lines of tbe Johnston survey; that “ every one hauled logs from tbe Pine Ridge;” that Sboup went there in April or May 1861, to make an improvement; “ tbe Bice field” was empty, Sboup put a cabin there through the summer and cultivated tbe field; be.went to the war in 1872, when be came back tbe defendant bought from him and bad lived there ever since and cultivated it.
    There was evidence that Dr. Sboenberger and bis successors bad disclaimed title to tbe land in dispute.
    The defendant’s points were:—
    1. There is no such evidence of title in plaintiff to tbe land in dispute as will enable him to recover, and tbe verdict must be for tbe defendant.
    2. There never was such title to any part of tbe land in dispute in John Croyle, nor has tbe plaintiff so connected bis possession or that of his predecessors therewith as to avail him in this action.
    3. Plaintiff and bis predecessors do not stand in tbe position of “ earlier intruders” upon tbe Johnston tract so as to give them a title superior to defendant to that survey; but as trespassers thereon, and defendant may successfully defend upon said survey as an outstanding title.
    4. If tbe jury believe that Dr. Peter Sboenberger was not in possession from 1834 until the time of his death be had acquired no such title by adverse possession as would enable bis devisees to recover and bad at the time of his death no title to devise.
    5. Tbe McCormicks acquired no title to tbe land in dispute by leasing tbe smalt field in 1858 and 1859.
    6. If tbe jury believe from tbe evidence of David Dickey and Matthew Morehead that Peter Sboenberger bad no title to tbe land in dispute, but only claimed tbe same and took possession thereof, to secure tbe timber growing thereon and then abandoning tbe land, then plaintiff bad no title and tbe verdict must be for tbe defendant.
    Tbe court charged:—
    [“ I think that tbe decision of two questions by tbe jury will make an end of this controversy.
    “ The first question is: Were tbe McCormicks whose title tbe plaintiff has, in tbe actual possession of tbe tract of land in dispute at tbe time of tbe entry of Sboup upon this tract for tbe purpose of appropriating it to himself, whose right tbe defendant Burke acquired ? Now tbe principal facts, material to tbe solution of this question, as I understand the evidence, are as follows: — Tbe tract in dispute is part of tbe James Johnston survey, which is itself a part of a stretch of mountain side called the Pine Ridge. On the Johnston tract, as far back as 1819, a small field of three or four acres was cultivated, which is within the limits of the tract in dispute. From about 1830 to 1858, this field was not cultivated, nor was it enclosed before 1858. It lay an open commons. In 1832 and 1883, Dr. Peter Schoenberger, whose title plaintiff has, cut off all the timber growing on the Johnston tract and the Pine Ridge, for Sarah Furnace. There was no building on the land in dispute or on the Johnston’s, outside the lines of the Evans tract, at any time. In 1858, one Samuel Bice got permission from the owner of Sarah Furnace to clear off the small field and to fence it up. In 1858 and 1859, it was farmed by Bice, then in possession under the McCormicks, and in 1860 he cut and hauled away the crop. ‘ I left the field fenced,’ says Bice. Then, in 1861^ Shoup entered upon the land in dispute, which includes the field, and put up a cabin. The war called him away for a year or two. When he returned, he made some arrangements with Burke, the defendant, who entered upon the tract and held it as his own. The evidence seems to me to show also, and it can hardly be doubted, that the owners of Sarah Furnace, the predecessors in title of plaintiff, were claiming and treating the Johnston tract as part of the Sarah Furnace lands, from the time of the erection of the furnace until the entry of Shoup.
    “ If these facts are established by the evidence, and it seems to me they are, we have at the time of the entry of Shoup this state of things, namely: The cultivation of an enclosed field on the Johnston, by persons in under lease or license from the McCormicks,'who were claiming the whole of the Johnston tract, which included the land in dispute. This would amount to actual posses sion by the McCormicks of the land in dispute. It will not do to say they were not in the actual possession of the enclosed field in 1861, merely because they did not farm the field in 1860 or 1861, but had only cut and carried away the crop in 1860. An owner of an enclosed field must surely be permitted to allow it to lie idle a year or two years, without rendering it liable to be appropriated by any one coming along.
    “ If you should be of opinion that the McCormicks whose title the plaintiff has, were in the actual possession of the land in dispute when Shoup entered, such possession merely, without showing legal title, is sufficient to enable plaintiff to recover against the defendant, a mere intruder showing no title. But if you should hold otherwise, then plaintiff cannot recover, unless it be upon this other ground that the title under the warrant to James Johnston became vested in him or his predecessors in title.] * * *
    The court then gave a synopsis of the evidence and said:—
    I think there is in all this enough to raise a presumption of a conveyance of the right under the James Johnston warrant and survey to Shoenberger or the McCormicks, by deed which has been lost.] But if you are of a different opinion upon this question and also think there was no actual possession of the land in dispute by the McCormicks in 1861, when Shoup entered, your verdict will be for the defendant.
    “ It is not necessary to read and answer the points presented by counsel. So far as they are not substantially affirmed in what we have said, of course, they are refused.”
    The verdict was for the plaintiff.
    The defendant removed the record to the Supreme Court by writ of error, and there assigned the following errors, amongst others:—
    I. Admitting the deposition of Michael Reed.
    5, 7. The parts of the charge in brackets.
    8-13. Refusing to affirm the defendant’s points.

      J. B. Cessna and J. (Jessna, for plaintiff in error.
    There must be continuous acts of ownership by a claimant for at least twenty-.one years to supply the place of a lost deed; there can be no presumption short of that period: Warner v. Henby, 12 Wright 187; Fox v. Thompson, 7 Casey 172. Acts of ownership by Dr. Shoenberger cannot be connected with such acts by others without showing something to raise a presumption that he owned the title of the first claimant: Schrack v. Zubler, 10 Casey 38. If Shoenberger had the legal title to the Johnston warrant, purchasing the Evans warrant and perfecting it by patent, prove an abandonment of the Johnston outside of the Evans warrant: Sabins v. McGhee, 12 Casey 453 ; Adams v. Jackson, 4 W. & S. 78. Actual possession maybe by residence and cultivation : Susquehanna, &c., Railroad Co. v. Quick, 18 P. F. Smith 189; Huffman v. McCrea, 6 Id. 99. There cannot be an adverse constructive possession; adverse possession is aggressive: Stephens v. Leach, 7 Harris 262.
    6?. S. Spang and S. L. Bussell, for defendant in error.
    There was evidence sufficient to raise a presumption of a conveyance to Shoenberger of the right under the Johnston warrant: Galloway v. Ogle, 2 Binn. 468; and an intruder entering on warranted land is entitled to no favor: Taylor v. Dougherty, 1 W. & S. 324; Hastings v. Wagner, 7 Id. 215; Fox v. Thompson, 7 Casey 172.
   Mr. Justice Gordon

delivered the opinion of the court, October 12th 1874.

The testimony in this case does not raise the question of title under the Statute of Limitations. The evidence does not show that either of the parties maintained such an actual and continuous possession of the land in dispute as would bar the right of the warrantee. The case therefore turns upon two distinct propositions : First, wererbhe plaintiff’s vendors in the actual possession of the land in controversy, either by themselves or their tenants, when the defendant settled upon it ? In determining this question the occupation of the land by John Croyle, from 1819 to 1829, is not to be considered, forasmuch as that occupation was abandoned at the latter date, neither does it in any way appear to be connected with the plaintiff’s title. In like manner must we exclude the coaling operations of Dr. Shoenberger, for they lack both the permanency and continuity of that kind of possession which, for the time being, is equivalent to title.

The matter then narrows itself down to the inquiry whether, at the time the defendant entered upon the disputed premises, he intruded upon the actual possession of those under whom the plaintiff claims. It will be observed, in the determination of this proposition, that we are to regard the fact of possession alone, and this must be evidenced by acts indicating permanency of occupation, such as residence or cultivation. Where the possessor leaves the premises, his intention to return, of itself, will not avail to continue his possession ; there must, in order to produce this effect, be. some indication left in or upon the property which will give notice of such intent; otherwise abandonment will be presumed.

What those indications are which signify an intent to continue the occupancy will readily suggest themselves even to a casual observer. Buildings kept in a good state of repair, though not occupied, and fields properly fenced, so as to exclude marauding cattle, though not under immediate cultivation — these, and many other things of a like character, notify us unmistakably that the possession has not been abandoned.

We have thus been particular in stating the governing principles of cases like the present, in order that the court may have as clear a view as possible of our ideas, and thus avoid a resubmission to the jury of such facts as the Croyle improvement, the timber-cutting by Dr. Shoenberger, and the claiming of the Johnston tract as part of the Furnace property, as indications of actual possession. The two latter facts would be pertinent in connection with the Bice improvement, to show the extent of the plaintiff’s claim, but for no other purpose. This evidence is admissible under the rule, that where one enters upon a tract of land, claiming the whole, though he occupies only a part of it, nevertheless his possession will be treated as co-extensive with his claim.

The second proposition presents the following question: Taking the whole of the evidence together, was there such a long-continued assertion of title, by user of the products of the land in dispute, payment of the taxes, &c., as would raise a presumption of a grant from the warrantee to those under whom the plaintiff claims? The cases cited by the learned judge who tried this case are in point: Taylor v. Dougherty, 1 W. & S. 824 ; Hastings v. Wagner, 7 Id. 216; Fox v. Thompson, 7 Casey 174. A continuous claim and payment of taxes for twenty-one years, have been held to raise such a presumption as against an intruder. “ The rational ground for presumption,” says Chief Justice Tilghman, in the case of Kingston v. Lesley, 10 S. & R. 383, “ is when the conduct of the party out of possession cannot be accounted for without supposing that he has conveyed to the one in possession.”

So in Warner v. Henby, 12 Wright 18T, it is said by Chief Justice Thompson: “ These presumptions, when ripened by time and the silence of the warrantee, supply the place of a conveyance where there have been continuous acts of ownership on part of the claimant. That period is not less than twenty-one years.” And again, on the same page: “ In other words, no presumption runs in his favor more than that of anybody else, if he does not entitle himself to claim it by sufficient acts for a sufficient length of time.” From these authorities we learn that this presumption of grant arises only in favor of him who persistently and continuously claims the land fór a long period of time, exercising over it from time to time such acts of dominion as the character thereof warrants and paying the taxes thereupon assessed. Occasional invasions of the property, which may amount to mere trespasses, will not suffice to raise this presumption, neither will the occasional payment of taxes. Whether the plaintiff and his predecessors in title brought themselves within this rule, was a question properly submitted to the jury. The court, however, committed an error in admitting the evidence of Michael Reed, to prove that at one time he saw among the papers of Dr. Shoenberger a deed to him for the James Johnston tract. The defect in this testimony is that it does not inform us when or by whom it was executed, or indeed whether or not it was ever executed by any one. This was clearly not evidence, as it neither showed title nor served to raise a presumption of grant. The proof amounted only to evidence of an unexecuted paper that could avail' for no legitimate purpose whatever, and should therefore have been excluded. We discover nothing else that needs correction, but for the errors indicated the judgment is reversed, and a venire facias de novo awarded.


author: Mr. Justice Williams

text:
    McFerren versus Mont Alto Iron Co. et al.

    1. Id. aD action of trespass the defendants pleaded that the locus in quo was a private way which they used under a license and also that it had been reserved in a deed; the plaintiff alleged that the way reserved was in a different place from that claimed by the defendant. Held, that evidence that the way had been used by the public, although irrelevant as to license or reservation, was admissible to show its existence and location.
    2. The plaintiff bought the lot over which the way passed from Bricker who had bought of Hughes ; plaintiff had previously bought from Hughes an adjoining lot on which he alleged the way was when he bought. At the time of both sales Hughes owned land adjoining both lots; his successors in title claiming the right to use the way were the defendants; Hughes was dead .at the trial. Held, that the plaintiff was competent, under the Act of April 15th 1869, to testify of transactions between himself and Hughes as to the lot he had purchased from Hughes.
    3. The proviso of the Act of 1869 was intended to exclude parties to the transaction as witnesses in regard to it, where the opposite party is dead and his rights had become vested in others. The plaintiff was not a party to any transaction with Hughesin relation to the locus in quo.

    4. Bricker not being a parly to the suit was competent to testify for the plaintiff, of declarations of Hughes and transactions with him, at the time of his conveyance, in relation to the reservation of the road and change of its location.
    5. Bricker would have been competent, before the Act of 1869, which is an enabling statute, and does not apply to a witness competent before its passage.
    May 16th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Franklin county: Of May Term 1874, No. 58.
    This was an action of trespass quare clausum fregit, brought February 5th 1872, by George McFerren, against The Mont Alto Iron Company, George B. Weistling and others.
    The declaration was that the defendant broke and entered the plaintiff’s close, broke down his fences, cut down and destroyed his timber trees, &c., &c.
    The defendant pleaded: 1. “ Not Guilty : 2. That the defendants entered by license from the plaintiff. 3. That the locus in quo had been owned by Holker Hughes, who on the 30th of May 1854, conveyed to Jacob Bricker by deed, in which Hughes reserved to himself, his heirs and assigns, the right to the use of a certain road over the land conveyed to Bricker; that the right passed from Hughes by deed to Mont Alto Iron Company, and the alleged trespasses were committed by the servants of the company over the way so reserved.
    The road mentioned in the third plea passed over a field of about twelve acres belonging to the plaintiff. It had been part of the Mont Alto Furnace property, which consisted of a body of land of 10,000 acres or more, and which had belonged to J. Holker Hughes; on the 13th of'March 1854, Hughes conveyed this field of twelve acres to Jacob Bricker, and on the 14th of January 1862, Bricker conveyed it to the plaintiff. The plaintiff alleged that the road of which the defendants claimed the use, was on another piece of land, containing about nine acres, which cornered with the twelve-acre field at its south-west corner, the north line of the nine acres extended forming the south line of the Bricker tract; the nine acres also had been part of the Mont Alto Furnace property, and had been conveyed by Hughes to the plaintiff in 1852. At and after it was so conveyed, there was a road through it which Hughes used, to go to what were called the “ Pond Ore-bankshis works being situate southwardly of this field and the ore-banks northwardly of it. The plaintiff further alleged that this road, after the purchase of the nine-acre field, was moved eastwardly to the line of the Bricker field and passed over the southwest corner near where it joined the nine-acre field. The road in dispute entered the Bricker field, at about the middle of its south line, from the property of tie iron company and considerably to the east line of the nine-acre field and passed northeastwardly through the Bricker field into other property of the company. It was called the “ Old Shirey road.”
    The case was tried January 28th 1874, before Hall, P. J.
    The plaintiff gave in evidence a deed with general warranty, dated January 14th 1862, from Bricker to himself for the twelve acres; he then gave evidence that the whole field had been enclosed before the alleged trespass ; that defendants had taken down the fences so as to pass over the road; and rested.
    The defendants gave evidence of acknowledgments of plaintiff ' that the iron company had the right of way in dispute; that it was a plain, well-marked road ; that it had been fenced up about 1857 or 1858.
    John Sproul, a witness, having testified that he had known the road for over thirty years, the defendants proposed to show by him and others “ that the road in dispute was used by the owners of the furnace property, and also by other persons of the neighborhood, for the entire period of which the witness speaks.”
    The counsel for the plaintiff objected to all evidence to show that the road in dispute was a public road, used by others than the employees and owners of the furnace, because the pleadings show that the defendants justify the entry upon the plaintiff’s land under a special license from the plaintiff, and under a reservation in the deed from Hughes, the predecessor of the title to the furnace property, to Bricker, the predecessor of the title to the plaintiff’s land.
    The offer was admitted, and a bill of exceptions sealed.
    ' They gave evidence in accordance with the offer, including evidence that the road had been used by persons in the neighborhood to reach public roads and other public places.
    They then gave in evidence a deed dated March 18th 1854, from Hughes to Bricker, for the twelve acres; in the deed was contained the following clause:—
    “ Reserving, however, the road as it is and .the right of pur-ehaslng on Hughes paying for same all the ore raised on said land, to said John Holker Hughes and his successors, at Mont Alto Iron Works, as-aloo the-right of-way through-said- land.” ' .
    Above the signature of the witness was: “ on the tenth line the word ‘purchasing’ erased before signing:”—

      The defendants having rested, the plaintiff in rebuttal gave evidence that at the time of the conveyance to Bricker the land was all in timber and unenclosed ; that the timber was afterwards cut off and it was then enclosed; that the nine acres had been fenced previously; that there had been a road through that piece used by the defendants’ predecessors to pass to the “ Pond Oro-banks that about the time the Bricker field was fenced there was a road made between it and the nine-acre field; he gave evidence also to show that there was no well-marked road through the Bricker field where defendants claimed that it was, and that there had been roads all through that piece when it was in timber.
    It was admitted that J. Holker Hughes was dead.
    The plaintiff proposed to prove by his own testimony “ that the time he bought the nine-acre field from Hughes there was a road passing through it; that when Hughes tendered witness the deed, he had a reservation of this road in the deed, and when witness saw it he refused to accept the deed, and then Hughes had the reservation erased, and the road was then changed to where it now is, between the Bricker lot and the nine-acre lot.”
    The evidence was objected to by the defendants, because, first, the road spoken of in the offer is not in dispute, and in no way relates to the case; and because it is proposed to prove a contract with Holker Hughes in his lifetime in relation to said road, and Hughes being dead, the witness is not competent to testify on the subject; and because the witness is not admissible to contradict, change or modify the deed, and because the evidence is irrelevant; and because the witness being the alienee of Jacob Bricker of the land over which the disputed road passes, is not a competent witness on the subject of this road, or in this case,’ Holker Hughes being dead, having died before this suit was brought.”
    Per Curiam : “ The thing in controversy in this suit is a right of way alleged to have been reserved by a contract between Holker Hughes and Jacob Bricker, which contract is evidenced by a reservation in the deed of conveyance from Hughes to Bricker. The witness (who is the plaintiff) is the vendee of Bricker, and claims the land free from the right of way. The defendant is the vendee of Hughes’ adjoining property, and of his rights of way. We hold the plaintiff incompetent to prove matters occurring in the lifetime of H. Hughes, between Hughes and himself, because Hughes is dead. The evidence embraced in this offer is to this extent rejected.”
    A bill of exceptions was sealed.
    The plaintiff having released Jacob Bricker from his liability on his covenant in the deed of January 14th 1862, offered in evidence his deposition, which contained the following:—
    “ I purchased a tract of land from Holker Hughes. (Deed of 1854 to deponent shown.) This is the deed for the land. (Looks at the erasures in the deed.) ■ When I bought the land from Hughes I was to pay him $87.50 per acre for 12 acres and 46 perches. There was some difficulty about judgment-liens, and no deed was made at the time, but. he gave me a right to go on the land and cut timber (it was then all timber-land). After we surveyed it, he found out that he was shut up and had no road to the Pond Bank to get ore; that he was fenced up. Then he agreed, if I would let him pass through the corner of the field I bought from him, he would allow me the timber on the road that was on his land, to pass through on Holker’s own land. When the deed was given I found these words, ‘ as also the right of way through said land.’ When I discovered this, I would not lift the deed at all, and I paid the purchase-money, and cut some timber on the land. Holker Hughes ordered Thomas Wilson-to erase the words above quoted, leaving the deed as it now stands. This was before the execution of the deed, but am not certain. This was done, I think, before the deed was signed. It was done before it was acknowledged. I would not lift the deed at all with those words in. Hughes directed his manager, Thomas Wilson, to erase the words above mentioned. Then the deed was acknowledged shortly after and delivered to me as it is now. He was not fenced up at the time, but he found that he would be fenced up, and I gave him a road across the corner of the field upon which this alleged trespass was committed. The road that I gave him the right to use was not the road upon which the alleged trespass was committed. * * *
    “At the time I bought it he found that the road would be fenced up. * * * I gave him the road across the corner of the field before I lifted the deed. I can’t tell how long it was I gave him the road before I lifted the deed. He went through McFerren’s piece of road before I gave him the road. * * * I took the timber that he gave me, and gave him the road across the corner of the field, which has been used ever since.” * * *
    The offer was objected to by the defendants because Bricker was “ not a competent witness, the subject-matter of his testimony being about a contract alleged to have been made between him (the witness) and Holker Hughes about the matter in dispute. The said Holker Hughes having died about four years ago, this witness is not competent to testify of conversations and contracts made before the death of Holker Hughes, so far as they relate to this case; also, because he is not competent to contradict a written deed.”
    The court rejected that part of the deposition given above, “ as it relates to the occurrences between Holker Hughes and Bricker concerning the subject matter in controversy in this suit.” A bill of exceptions was sealed for the plaintiff.
    The plaintiff’s fourth point was :—

      “ The defendants having claimed the right of entry upon this field by a special license from the plaintiff, and under an express reservation contained in the deed from Hughes to Bricker, and this being the only issue raised by the pleadings, there can be no defence made in this case of the trespass complained of, by showing that the public had acquired a prescriptive right to a road through the plaintiff’s field, even should the jury believe the evidence does establish such a public right, and the court is respectfully requested to withdraw all evidence about this being a public road from the jury.”
    The court answered:—

      “ The counsel for defendants have not claimed that a public road by prescription exists. They claim under the reservation in the deed, and point to the use of the road by the furnace people and others, for years before the date of the deed, as evidence to’ indicate the road referred to in the deed, and this is the issue raised by the pleadings and which we submit to you.”
    The verdict was for the defendants.
    The plaintiffs took out a writ of error and assigned for error,
    1. Admitting the evidence of John Sproul and others, as mentioned in the first bill of exceptions.
    2. Rejecting the testimony of the plaintiff, as mentioned in the second bill of exceptions.
    3. Rejecting that portion of the deposition of Jacob Bricker, as mentioned in the third bill of exceptions.
    4. The answer of the court to the plaintiff’s fourth point.

      J. McD. Sharpe (with whom were W. S. Stenger and W. Reilly), for plaintiff in error.
    This road does not fall within the principle that when the owner has given permanence and an open manifest existence to an easement on his own land it continues unaffected by sale, &c., the land being unenclosed woodland at the time of the conveyance, and the road not necessary for the enjoyment of this property : Gale & Whatley on Easements 88. There were other roads by which he could reach his ore-banks. To show that the way was a public road required the plaintiff to meet an issue different from that raised by the pleadings.
    The plaintiff was competent, not being the opposing contracting party to the assignor of the thing in action, to wit, Hughes; Bricker was that party and he was not party to the suit. An interpretation of the proviso in the 1st section of the Act of April 15th 1869, Pamph. L. 30, 1 Br. Purd. 624, pl. 16, is given in Karns v. Tanner, 16 P. F. Smith 297. Since that act all witnesses are primá facie competent as regards interest and policy, and objections for these reasons should clearly appear: McClelland v. West, 20 P. F. Smith 183.
    Bricker was not a party to the suit, and 'was therefore competent: Craig v. Brendel, 19 P. F. Smith 153. If he was incompetent un'der the Act of 1869, and not being a party to the suit, if disqualified on the ground of interest, that was removed by the release from #the plaintiff: Summers v. Wallace, 9 Watts 161; Goodman v. Losey, 3 W. & S. 528; Calhoun v. Hays, 8 Id. 127; Rhines v. Baird, 5 Wright 256; Haus v. Palmer, a Harris 298; Dayton v. Newman, 7 Id. 194; Forrester v. Kline, 14 P. F. Smith 29; Susquehanna Coal Co. v. Quick, 11 Id. 329; Thomas v. Maddan, 14 Wright 261.
    (r. W. Brewer (with whom were H. Cfehr and F. M. Kimmel), for defendants in error.
    The land was sold to Bricker, having at the time a plain open road over it necessary for other parts of Hughes’s land; it was bought subject to the easement: Kieffer v. Imhoff, 2 Casey 438; Penna. R. R. v. Jones, 14 Wright 417; Phillips, v. Phillips, 12 Id. 178; Kirkhom v. Sharp, 1 Wharton 323; Cope v. Grant, 7 Barr 488; Seibert v. Levan, 8 Id. 383. As to the testimony of plaintiff and Bricker, they cited Karns v. Tanner, 16 P. F. Smith 297; Allum v. Carroll, 17 Id. 68.
   Mr. Justice Williams

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

If the purpose of the offer embraced in the first assignment was to establish the defendants’ right to the use of the road in question, either under the alleged license or the reservation in the deed of Hughes to Bricker, then so much of the offer as relates to its.use by other persons in the neighborhood was irrelevant; but if its purpose was to show the existence of the road, and that it was located where the defendants claimed the. right to its use under the reservation, there was no error in its admission. Nor was there error in refusing to withdraw the evidence from the jury, as requested in the plaintiff’s fourth point. The court instructed the jury in answer to this point, that “the defendants have not claimed that a public road exists by prescription. They claim under the reservation in the deed, and point to the use of the road by the furnace people and others, for years before the date of the deed, as evidence to indicate the road referred to in the deed, and this is the issue raised by the pleading which we submit to you.” So far as the evidence tended to indicate the road referred to in the deed of Hughes to Bricker, it was clearly admissible, and, under the instructions of the court, this was the only purpose for which it was submitted to the jury.

The next assignment raises the question, whether' the plaintiff was a competent witness: and if so, whether the facts proposed to be proved by him were material and relevant to the issue ? He. purchased the lot up.on which the trespasses alleged to have been committed, from Bricker, to whom Hughes by deed dated March 13th 1854, conveyed it, “ reserving, however, the road as it is.” By a subsequent deed, dated August 1st 1864, Hughes conveyed the adjoining land, known as “ the furnace property,” to the defendants, “ together with all and singular the buildings, improvements, * * * ways, &c., thereunto "belonging, or in any wise appertaining.” Under this deed the defendants claimed the right to the use of the way or road in question, alleging that it was the road reserved in the deed of Hughes to Bricker. The court rej ected the plaintiff as incompetent to prove matters occurring between himself and Hughes, the latter having died before the trial. But was he an incompetent witness for the purpose for which he was offered ? He was not called to testify to anything connected with the sale and conveyance of the lot to Bricker, upon which the trespass is alleged to have been committed, or in relation to the sale and conveyance of the furnace property to the defendants, under which the right of way is claimed. He was offered for the purpose of proving matters having no connection with either conveyance. He purchased from Hughes a lot containing nine acres adjoining the one sold to Bricker. Why was he not competent to prove that there was a road through “ the nine-acre lot ” when he bought it, and that it was then changed to its present location between “ the Bricker lot ” and “ the nine-acre lot ?” That there was such a road, and that its location was changed, were facts independent of the deed for the lot, and wholly unconnected with the contracts between Hughes and Bricker, and Hughes and defendants, which are involved in this action; facts which, if not true, could be disproved by persons in the neighborhood as readily as by Hughes himself, if he were living. Why, then, should the plaintiff’s mouth be closed in regard to these matters, if Hughes was dead? And if not, why was he not equally competent to prove that, when Hughes tendered the deed for the lot it contained a reservation of the road, and that he refused to accept it, and then Hughes had the reservation erased ? The defendants were not claiming a road through “ the nine-acre lot.” Why, then, was the plaintiff not competent to prove the facts for which he was offered ? It is no answer to say that he was not competent because Hughes was dead. The act, allowing parties interested to be witnesses, rendered him a competent witness, unless he is disqualified by the proviso, which declares that the act shall not apply “where the assignor of the thing or contract in action is dead.” If, in legal contemplation, Hughes is to be regarded as the assignor of the alleged right of way over “the Bricker lot,” the plaintiff was not a'party to the transaction, nor was he called- to testify anything concerning it. Surely the proviso was not intended to exclude parties from being witnesses, where the assignor of the thing or contract in action is dead, if they were not parties to the transaction, and are not called to testify to anything that took place between themselves and the deceased assignor. If it was, then no -party claiming title through or under a deceased grantor, however remote the conveyance, can be a witness where the land, or some estate in it, is the subject of the action. The proviso must have a reasonable interpretation, and it must not be so construed as to defeat the very purpose of the act. It was intended to exclude parties to the transaction from being witnesses in regard to it, where the opposite party is dead and his rights have become vested in others by his own act or*by operation of law. But it never could have been intended to exclude persons who were not parties to the transaction, and who are not called to testify anything respecting it. The plaintiff was, therefore, a competent witness; but were the facts proposed to be proved by him, material and relevant to the issue ? If there was a road through “the nine-acre lot,’’.and it was changed to its present location between that lot and “ the Bricker lot,” because the plaintiff would not accept the deed tendered by Hughes reserving the road, what bearing have these facts on the question whether there was a road through the lot conveyed to Bricker called the “ Old Shirey road,” and whether it is the road referred to and intended to be reserved in the deed of Hughes to Bricker ? Possibly the offer would have been admissible if it had been proposed to follow it with evidence showing that the road was changed to its present location before the execution and delivery of the deed to Bricker. But this was not a part of the offer, and as both deeds have the same date the presumption is that it was not the fact. If so, the offer was irrelevant, and the plaintiff has no right to complain of its rejection, though the reason assigned for it may have been erroneous. But there was error in rejecting the deposition of Josiah Bricker “so far as it relates to occurrences between Hughes and Bricker concerning the subject-matter in controversy in this suit.” If Hughes, the grantor of Bricker, was dead, the latter was not a party to the suit. It is true that the plaintiff claimed title under him, but he had released him from all liability on the covenants in his deed, and, therefore, Bricker had no interest in the event of the suit. It is clear that he would have been a competent- witness as the law stood prior to the passage of the act allowing parties to be witnesses, and it would be an utter perversion of its spirit and meaning to hold that he was disqualified by its provisions. It .is an enabling, and not a restraining statute; and the proviso was not intended to apply to a person competent as a witness before the passage of the act, and therefore not within its provisions.

Judgment reversed, and venire facias de novo awarded.


text:
    Catharine Township Road.
    1. An order issued for the view of a road between designated termini, the order also designating intermediate points. Held, that designating intermediate points was fatal to the proceedings.
    2. After the return of the viewers and exceptions, the exceptant and the principal party advocating the road, by writing filed agreed to a change in one terminus. The court confirmed the return of the viewers with the exception that the “ southern end * * * be changed,” as agreed,upon. Held, to he error ; the court had no power to change the route as reported.
    May 18th. 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Certiorari to the Court of Quarter Sessions of Blair county: Of May Term 1873, No. 64.
    At July sessions 1869 of the court below, there was a petition for viewers for a road “ to lead from a point on the Etna Iron Works and Cove Forge road, near and west of a barn the property of Joseph Isenberg, by the best route through lands of Joseph Isenberg, John Clark and John K. Sissler, to a point on the road leading from Etna Iron Works to John K. Sissler’s, near an old barn belonging to John Clark.” Viewers were accordingly appointed, and an order, reciting the description of the road asked for in the words of the petition, issued to the viewers. To the October sessions the viewers reported that they had laid out a road substantially as prayed for; the report was confirmed nisi. At the January sessions 1870 an order for review was issued; reviewers reported the same road, which was confirmed nisi June 21st 1870. Exceptions were filed to the report by Joseph Isenberg. On the 16th of March 1871, John Clark, who was advocating the road, and Isenberg entered into an agreement of compromise, in pursuance of which the court made the following order, which is in the words of the agreement:—
    “And now, March 19th 1871, the report of reviewers confirmed absolutely as to the road within laid out, except that the southern end of same be changed to a point about eight rods west of present location, near a stone pile, and from thence to run east, as nearly as possible, along between Samuel Isett and Joseph Isenberg, to the nearest point on new road as within laid on land of John Clark.”
    At October sessions 1871, Samuel Isett presented a petition, setting forth: That the change in the location of the road from that made by the viewers and reviewers materially affected him in passing through his land; that he had no notice of the intended change; that it was done hv Clark and Isenberg, the parties directly interested; that the order made by the court was illegal, and praying that it be revoked and the report of the viewers or reviewers be confirmed or referred to other viewers.

      The court granted a rule to show cause why the order should not be revoked, which rule, on 19th March 1872, was discharged.
    Writs of certiorari were issued, at the instance both of Isenberg and Isett, to remove the proceedings to the Supreme Court. Isett assigned these errors:—
    1. The court erred in laying out a road different from that reported by the viewers and reviewers.,
    2. The order is too indefinite as to the location of that part of the road changed by the court.
    Isenberg assigned for error:—
    1. .That by the order to view and lay out tne road the viewers are required to lay out the same through the lands of Joseph Isenberg, John Clark and John K. Sissler.
    2. That one of the termini of the road is not designated in the report of the viewers — that is to say, the point in the Etna Iron Works and Cove Forge road, near and west of a barn the property of Joseph Isenberg.

      II M. Baldridge, for Isett,
    referred to the General Railroad Law, June 13th 1836, sect. 2, Pamph. L. 555, 2 Br. Purd. 1272, pl. 2; sect. 18, Id., 1276, pl. 18. The court cannot change the location of viewers: Beigh’s Road, 11 Harris 305; Lower Merion Road, 8 P. F. Smith 66; Herr’s Mill Road, 14 S. & R. 204; Wetmore Township, 18 P. F. Smith 340.

      T. Banks and S. 8. Blair, for Isenberg.
    The order to view and lay out the road should have designated only the termini of the road. The viewers must not be controlled in any way by the order in respect to the intermediate points of the road: McConnell’s Mill Road, 8 Casey 285; Road in Lower Merion, 8 P. F. Smith 66. If the viewers fail to describe the termini of the road it is fatal: Id.; Bean’s Road, 11 Casey 280; Road in Lower Salford, lid. 524...
   Mr. Justice Gordon

delivered the opinion of the court, October 12th 1874.

In this case a view was ordered at the July sessions 1869 to view and lay out a road from a point on the Etna Iron Works and Cove Forge road, near the barn of Joseph Isenberg, through lands of Joseph Isenberg, John Clark and John K. Sissler, to a point on the road leading from Etna Iron Works to John K. Sissler’s, near the barn of John Clark. On this order there was a report to October 13th 1869, which was confirmed nisi October 25th 1869. An order of review was issued March 28th 1870. The report of reviewers was confirmatory of the original view. At the instance of John Clark and Joseph Isenberg, the court altered one of the termini of the road and confirmed the report.

Two errors are apparent in these proceedings: First, intermediate points are indicated in the petition and orders. This is fatal: McConnell’s Road, 8 Casey 285.

Second, the court altered one of the termini, which it had no power to do: Beigh’s Road, 11 Harris 302. The proceedings of the Quarter Sessions are therefore reversed and set aside.