Opinion
October 25, 1937.
March 4, 1938.
Practice — Rule to bring ejectment — Real estate — Title — Possession — Denial by respondent — Sufficiency — Laying of sewer or drain — Acts of March 8, 1889, P.L. 10, May 25, 1893, P.L. 131 and April 16, 1903, P.L. 212.
1. Under the Act of March 8, 1889, P.L. 10, and its amendments of May 25, 1893, P.L. 131, and April 16, 1903, P.L. 212, which provide that any party in possession of land whose title is disputed may have a rule on the claimant out of possession to bring ejectment within six months or show why he should not be debarred from thereafter doing so, the mere denial by respondent of the petitioner's possession of the land in dispute and respondent's averment of his own possession of it do not deprive the court of jurisdiction.
2. Where the testimony taken in support of the answer fails to show any substance in the claim of the respondent to have been in possession of the disputed land at the filing of the petition, it is the duty of the court to find whether the petitioner was in possession, and, if so, to make the rule absolute.
3. The mere laying of a sewer or drain under the surface of the ground is not possession of the land within the contemplation of the Act of 1889, as amended.
Appeal, No. 10, Oct. T., 1937, from order of C.P. Potter Co., March T., 1935, No. 72, in case of Gertrude McGoey Brewer v. Katherine Curtis.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Order affirmed.
Proceeding upon petition for rule to bring ejectment. Before LEWIS, P.J.
The facts are stated in the opinion of the lower court, as follows:
"We have before us a petition under the Act of 1889, P.L. 10, as amended by the Act of 1903, P.L. 212, 12 PS Section 1543, for a rule to bring ejectment. The respondent answering denies that the petitioner was in possession of the land in controversy and asserts possession by the respondent.
"Under date of March 11, 1892, August Mott acquired title to a lot with a frontage of thirty-three feet on West Street in the Borough of Coudersport. Sophia Mott, his widow, conveyed the same to the respondent by deed dated June 7th, acknowledged June 12th, and recorded July 25, 1933. This deed also conveyed a lot adjoining it on the South, the land in controversy, having a frontage of ten feet upon West Street, and recited title thereto by adverse possession.
"The plaintiff's title to the land in controversy is by deed from Matthew McGoey and wife dated August 6th, and recorded August 8, 1932.
"Since title to the land in controversy is claimed by both the plaintiff and the respondent, we have before us the very narrow question of whether or not the plaintiff is entitled to have the rule made absolute. If she was in possession, and the respondent was not, she is entitled to the remedy she seeks. If the respondent was in possession or if there is a substantial contest as to which party was in possession, the rule must be discharged, Clark v. Clark, 255 Pa. 574.
"On April 25, 1933, Sophia Mott filed in the office of the Recorder of Deeds of Potter County, claim to title of the land in controversy by adverse possession from April 1, 1892. We know of no authority for such a claim except the Act of 1901, P.L. 352, 68 PS, Section 81, and that act applies to a claimant out of possession. Mrs. Mott testified she left the property in May of 1933. According to her duly sworn claim of title, as read in the light of the act of assembly, she was out of that possession on April 25, 1933. Whether or not the character of Mrs. Mott's possession was sufficient to `fly the flag' over the land and put the true owner upon notice is not to be decided here. Her claim to occupancy was a flower bed on the ten foot strip South of the dwelling house that stood on the lot conveyed to her husband in 1892. The respondent says that [in 1933] she caused a sewer to be put in from the house, extending in a Southwesterly direction, diagonally across the ten foot strip. By this operation some of the flower bed was destroyed. The rest of it was there until she rented the house to Mrs. Mulconery who did not take care of anything, and the children destroyed the flowers. She cites as evidence of her possession the construction of a side walk in front of the ten foot strip. If that is evidence of possession, the evidence of her dispossession is undisputed. For it appears by the uncontradicted evidence of Basil Freeman, that in the summer of 1934, he laid for the plaintiff a concrete side walk on the West Street frontage of her lot and extended the same North to the South line of the lot conveyed to August Mott in 1892. In this operation he removed the side walk which had been put in by the respondent.
"We are convinced that the maintenance of a sewer beneath village property is not such open and notorious possession thereof as meets the rules laid down by the Supreme Court in Robin v. Brown, 308 Pa. 123; that a substantial contest as to the bare possession of the land in controversy does not exist, that the mere negation of the plaintiff's asserted possession can not avail the respondent and that the rule must be made absolute, McGuire v. Gilbert, 102 Pa. Super. 25, [28]."
Decree entered making rule absolute. Respondent appealed.
Error assigned was decree making rule absolute.
Paul Cauffiel, with him W.F. DuBois, for appellant.
G. Mason Owlett, with him Walter P. Wells, for appellee.
Argued October 25, 1937.
The opinion of President Judge LEWIS, as printed in the Reporter's statement, furnishes sufficient warrant for the lower court's order making absolute the rule on the respondent appellant to bring her action of ejectment.
As appellant contends that the cases cited by the court below do not sustain its action, we shall supplement Judge LEWIS'S opinion by some additional cases which support it.
Appellant takes the position that if the respondent in her answer denies that the petitioner is in possession of the strip of ground in dispute and avers that she — the respondent — is herself in possession of it, the rule must be discharged. Notwithstanding favorable dicta in some works on Practice, the Supreme Court cases construing the Act of March 8, 1889, P.L. 10, and its amendments of May 25, 1893, P.L. 131, and April 16, 1903, P.L. 212, do not support it. In order not to confuse the proceedings under the Act of 1889, as amended, with the rule for an issue to quiet title to land under the Act of June 10, 1893, P.L. 415, we shall restrict our discussion to the cases involving the Act of March 8, 1889, supra, and its amendments of May 25, 1893 and April 16, 1903.
Chief Justice MITCHELL in Fearl v. Johnstown, 216 Pa. 205, 208, 65 A. 549, said: "In clear cases the act of 1889 affords the simpler and more direct remedy and should have the preference. And it should not be defeated by a mere denial in the pleadings that plaintiff is in possession or that defendant is out, for that would make it too easy for an unwilling defendant to render the act ineffective."
In Spangler v. Trogler, 228 Pa. 217, 77 A. 495, the petitioner averred his possession of the cleared portion of the warrant in dispute and his cutting of timber, etc., on the woodland. The answer denied the petitioner's possession (p. 218). A replication was filed and testimony was taken, not to decide the title, but "to determine whether or not the court [had] jurisdiction under the facts to compel the defendant to bring his action" — that is, whether the jurisdictional facts as averred in the petition were present, viz., title averred in the petitioner and that he was in possession of the land claimed by respondent — and after considering the pleadings and the testimony taken, the court made the rule absolute, and the Supreme Court affirmed the order on the lower court's opinion.
In Foster's Petition, 243 Pa. 92, 89 A. 819, the answer of the respondent denied that the petitioner was the owner of the land in dispute, that it was within the fence lines of his land or in his possession and averred that it was within the bounds of the tract owned by himself. The Supreme Court affirmed the judgment of this court (RICE, P.J.) in 51 Pa. Super. 224, and said, speaking through Mr. Justice MESTREZAT (p. 99): "We are, therefore, of opinion that the statute, as properly interpreted, requires the court when there is an appearance entered and an answer filed on the return of the rule to hear and determine the sufficiency of the answer, and if the court orders the rule made absolute, the respondent has six months from the date of the order to bring his action before judgment can be entered against him." (Italics supplied.) The mere denial in the answer of the petitioner's possession and averment of respondent's possession did not of itself oust the court of jurisdiction to hear and determine the rule.
In Welsh v. Clough, 216 Pa. 276, 65 A. 677, there was a petition, answer and testimony taken. The Supreme Court, speaking through Mr. Justice BROWN, said: "The jurisdictional facts entitling the petitioner to his rule were set forth in the petition and found by the court — title claimed and possession shown to at least a portion of the property. Whether his possession is under a title superior to his own — that conveyed by the appellee to John Wilson — is not a question to be determined in this proceeding. It is instituted under an act passed for the purpose of having a disputed right of possession determined in an action of ejectment, which the party not in possession, but claiming an interest in the land, must bring against the party in possession. Under the court's own findings the rule as to the seventy-five acres could not have been withheld. . . . . . . We are compelled, therefore, to reverse the order dismissing the petition and remit the record, with direction that the court find whether the appellant is in possession of the whole tract, and, if not, of how much he is in possession, and that a rule be granted upon the appellee to bring his action of ejectment within six months for so much of the land as the appellant may be found to be in possession of." (Italics supplied.)
In Hemphill v. Ralston, 278 Pa. 432, 434, 123 A. 459, the Supreme Court said, speaking through Mr. Justice SADLER: "Here an answer was filed denying either ownership or possession to be in petitioner, and a hearing had at which testimony of the respective parties was heard. Later, an order was made in which it is declared `there is a substantial dispute as to which of the parties, plaintiff or defendants, is in possession, [and] we are of the opinion, therefore, that an issue should be framed, under the Act of 1893.' No conclusion was reached as to the person who actually held the tract in controversy. If it was not the petitioner, then, as already stated, the application must be dismissed, for a preliminary finding in the affirmative is necessary to confer jurisdiction, regardless of the act on which the proceeding was based. If the defendants are in control, the proceeding falls, for it must be instituted by the `person in possession,' and when both parties are out of possession, the legislation referred to does not apply. . . . . . . It is therefore clear that the present record must be remitted, so that the proper and necessary finding be made." Had the Supreme Court adopted appellant's contention it would simply have discharged the rule, instead of remitting the record to the court below to make a finding as to the petitioner's possession of the land in dispute, which was necessary to make the rule absolute.
These cases refute the contention of the appellant that a mere denial by her of petitioner's possession of the strip of land in dispute and her averment of her own possession of it deprive the court of jurisdiction of the proceeding and require the discharge of the rule. They hold, on the contrary, that where, as here, the testimony taken in support of the answer, fails to show any substance in the claim of the respondent to have been in possession of the disputed strip at the filing of the petition, it is the duty of the court to find whether the petitioner was in possession, and if so, to make the rule absolute.
We agree with the court below that the mere laying of a sewer or drain under the surface of the ground is not possession of the land within the contemplation of the statute. If done by one in occupancy of the surface of the land, it is a use consistent with ownership and possession; but, of itself, it constitutes rather an easement in the land than possession of it. If of a character of which the servient tenement has, or should have, notice, it may ripen into a valid easement by prescription, but it does not constitute possession of the land itself.
The order is affirmed.