Opinion
April 11, 1962.
June 13, 1962.
Practice — Ejectment — Action in equity to compel defendant to remove alleged encroachment — Action sounding in ejectment — Strength of plaintiff's title to disputed strip — Evidence — Alleged street — Opening — Acceptance — User.
1. In an action in equity to compel defendant to remove a building which allegedly encroached upon plaintiff's land and upon a bordering street, in which it appeared that defendant claimed the land, including the bed of the alleged street, as its own, and denied that the street was ever opened, it was Held, that, as to the disputed strip, plaintiff's action sounded in ejectment and it was necessary that she prevail on the strength of her own title.
2. Where it appeared that, as to the encroachment on her property, plaintiff merely offered her deed and testimony of a surveyor as to what that deed covered on the ground, and that she made no effort to show her chain of title or otherwise show that her grantor had title to or a right to convey the strip of property in question, it was Held that plaintiff had failed to show even such prima facie title as would arise from proving a chain of title from a common grantor.
3. It was Held that the trial court did not err in refusing to accept plaintiff's vague oral testimony, based upon recollection, as the clear and convincing evidence of use of the alleged street over a long period of time, necessary to show acceptance by user, and that the court's findings that the alleged street was never opened, never accepted as a public street by action of the borough, and never used generally by the public were supported by the record.
Appeals — Findings of fact — Chancellor — Credibility of oral testimony.
4. The credibility of the oral testimony is for the chancellor, and his findings of fact, based upon the credible evidence and approved by the court en banc, are binding on appeal.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 195, April T., 1961, from decree of Court of Common Pleas of Allegheny County, April T., 1957, No. 2738, in case of Katherine Ratajski v. West Penn Manufacturing and Supply Corporation. Decree affirmed.
Equity. Before CERCONE, J.
Adjudication filed finding for defendant; exceptions to adjudication dismissed and final decree entered dismissing complaint. Plaintiff appealed.
Abraham Fishkin, for appellant.
Howard J. Hazlett, with him Hazlett, Gannon, Walter Jacobs, for appellee.
Argued April 11, 1962.
This is an action in equity to compel the defendant to remove a building which allegedly encroaches upon the plaintiff's land and upon a bordering street. The defendant claimed the land, including the bed of the alleged street, as its own and denied that the street was ever opened. No objection was taken to the form of action, and the parties agreed that it should be heard and determined by the court below without a jury. The court below dismissed the complaint.
As to the encroachment on her property, plaintiff merely offered her deed and testimony of a surveyor as to what that deed covered on the ground. She made no effort to show her chain of title or otherwise show that her grantor had title to or the right to convey the strip of property in question. As to this, her action sounds in ejectment and she must prevail on the strength of her own title to the disputed strip. Miller v. Dierken, 153 Pa. Super. 389, 33 A.2d 804 (1943). She has failed to show even such prima facie title as would arise from proving a chain of title from a common grantor. See Dunn v. Milanovich, 302 Pa. 184, 152 A. 757 (1930).
As to the encroachment on James Street, the court's finding that James Street was never opened, never accepted as a public street by action of the borough and never used generally by the public is supported by the record. See Philadelphia Electric Co. v. Philadelphia, 303 Pa. 422, 432, 154 A. 492, 496 (1931). The only effort to show acceptance by user on the part of the public was the vague testimony of the plaintiff herself. This was oral testimony based upon recollection and we cannot find error in the trial court's refusal to accept it as the clear and convincing evidence of use over a long period of time which is necessary to show acceptance by user. Milford Borough v. Burnett, 288 Pa. 434, 136 A. 669 (1927).
The lower court has found that the street is not now open on the ground and has never been opened. All the deeds in the defendant's chain of title, back to and including the deed from McAlpin, who filed the plan laying out James Street, included the bed of the projected street in the land conveyed. The court's finding that the street has never had any existence except on paper is justified.
The plaintiff's brief challenges only the chancellor's failure to accept the oral testimony of the plaintiff and her surveyor and his acceptance of the testimony of the defendant's surveyor. The chancellor's findings were based upon credible evidence and were approved by the court en banc. Under such circumstances, his determination as to credibility of the oral testimony is binding upon us. Lower Merion Township v. Frankel, 358 Pa. 430, 57 A.2d 900 (1948).
Decree affirmed.