#### Moyer *v.*Rick.

In an action of ejectment, where the defendant claimed title by adverse possession, it was not error for the court to exclude from the evidence in the case the following question to the defendant: “ You got notice from the plaintiff not to put your building on his land, and then you put it a certain distance further away,” to show that the defendant recognized the alleged division line.

Where a witness is called and examined as to adverse user, it is not proper cross-examination to ask him about the division line.

March 7, 1889.

Error, No. 278, Jan. T., 1889, to C. P. Berks Co., to review a judgment on a verdict for defendant in an action of ejectment by Jacob Moyer against G. M. F. Rick, at Dec..T., 1885, No. 63. Green and Clark, JJ., absent.

The writ claimed a strip of land nine and one-half inches wide on Market street, in Millersburg, Pa., westwardly about 20 feet, and thence in the same direction 145 feet, gradually diminishing in width, and extending to a point at Green alley. The plea was not guilty.

On the trial, before Ermentrout, P. J., the evidence was to the effect that .the plaintiff and defendant owned adjoining lots, with a division fence extending from Green alley to within 32 feet of Market street, where it joined a building on plaintiff’s lot, set back some two feet from where the division fence would run if extended. It was this strip, 32 feet long, which was claimed, on the trial.

At the trial, Jonathan Ziebach, a predecessor in title to the plaintiff, when on the stand, was asked this question: “ Q. What was done as to the boundary line? A. The fence was considered that line. Q. As to the two feet between the buildings and the line that you speak of, what was your agreement as to the ownership of that? Mr. Snyder: The plaintiff objects, unless it is intended to *257elicit from the witness an agreement or conversation. The Court: We think the objection is well taken, because, to establish a consent to a line between the owners of adjoining properties, an assent to the line as marked must be shown in both parties. The understanding of .the one party is not competent; there must be something said which can be construed into an agreement or that would indicate knowledge and assent to the line as marked. If by understanding is meant any agreement, the plaintiff may show the agreement; if there was any conversation by and between the parties with reference to this line, that may be inquired into. Otherwise the objection would be sustained and exception noted for the plaintiff. We understand the witness to have already answered that he had no conversation with Klohr with reference to the disputed line, nor had he any agreement. By Mr. Bland : Q. To what point did Klohr claim title? Objected to. Q. To what line did Klohr, the adjoining owner, claim title on the one side and you on the other? Mr. Snyder: The plaintiff objects. The witness may show any claim that Klohr made, but we object to the evidence. Mr. Bland : With the knowledge and consent of each other. Mr. Snyder: We do not object to the showing of any claim Klohr made, provided he made any, but we do object to the evidence of any claim that this party made. The Court: There is no objection to any inquiry as to any claim or title made by Klohr. A claim of title made by the witness would not be evidence to establish a line, unless it be shown that Klohr assented to the establishment of said line or recognized the claim as made. If it be proposed to show that there was such an assent and recognition, that part of the inquiry may be made, otherwise not. Unless the inquiry be made as to the matter indicated by the court, the objection is sustained and exception noted for plaintiff. Exception. [1]

Ziebach testified further that Klohr never spoke to him about the line.

Rick, the defendant, having been called by way of cross-examination, and having testified that some fifteen years ago, he had moved over a log house right next to plaintiff’s house, and that some four years ago he had put a back building up, was asked: “ Q. You got notice, through ’Squire Klinger, from Mr. Moyer, not to put that building on his land, and then you put it nine inches further north than the south line of the old building, did you not ? Mr. Snyder : The defendant objects, that it is irrelevant. Mr. Bland : The object of this is to show the line spoken of by Mr. Ziebach yesterday was the recognized boundary line between the lots, and that even the witness, the defendant, recognized it as the line and put his back building inside of it; to be followed by proof that he was notified, through ’Squire Klinger, as the agent of the plaintiff, not to put the building on the lot of the plaintiff, Mr. Moyer. The Court: Objection sustained, and exception.” [2]

The defendant offered the draft of Tyson, the surveyor, in evi*258dence. Mr. Bland : The plaintiff objects to the draft as not being an accurate representation of the actual survey made by Mr. Tyson, for the reason that he has testified that the Market street front of the actual enclosed land of Mr. Rick, the defendant, is 110 feet, 10 inches in length, whereas the draft here now offered represents it as no feet in length. The Court : Admitted, and exception. [3]

John Weber, when under cross-examination, was asked: “ Q. You also testified before the arbitrators? A. Yes. Q. You then said that ‘ the line was between the Rick and the Ziebach houses ?’ Did you not say, ‘ the line was towards Ziebach’s house and not on the Rick side ?’ Mr. Snyder : Objected to as not relevant and not cross-examination. The Court: We have no recollection of this witness being asked a question about the line. He was called to show how this property was used. ' We know of nothing in his examination except this. The objection is sustained. By Mr. Bland : Q. Did you also testify before the arbitrators, ‘ I do not know where the line was, but it was understood that Moyer’s house was not on the line ?’ A. I never knew were the line went to. Q. Did you not so testify before the arbitrators? Mr. Snyder: The defendant objects, that it is not cross-examination. The Court: Objection sustained; exception for plaintiff. By Mr. Bland : Q. Did you not also say, ‘ I did not think Moyer’s house was on the line, but whether it was a foot or two, I do not know ?’ Mr. Snyder: Objected'to as not proper cross-examination. The Court: Objection sustained, and exception. [4]

The court below, after reviewing the facts, continued the charge to the jury, as follows, by Ermentrout, P. J.:

“ But there is another element in this case which the jury will determine and pass upon, regardless of all surveys, and that is the element of possession. The law is very well settled that, no matter what the lines are that may be called for in the deed, if one neighbor encroaches upon another, and, for twenty-one years and upwards, takes exclusive possession of that land, that is, occupies and uses it, and is in actual, visible, notorious, exclusive, uninterrupted possession, taken hostile possession, as the law calls it, for twenty-one years, that would give the neighbor, so encroaching, possession, regardless of what the deed might call for and what the actual lines might be. That is the law. It is not the act of an individual; there are many of our titles depending upon just that kind of proof; it is the assertion of the, law; it creates title, it gives peace and rest to neighborhoods, and, therefore, it is that the law is that, where there is such exclusive, adverse possession shown for a period of twenty-one years, that gives just as good a title in law as if the owner had a deed for it.

“ As we said before, there is very little dispute with regard to the law ; in fact, none. I will read from a decision which I have here, made as early as 1840, wherein the supreme court say : [‘ It is time that it should be settled beyond dispute that, where a person in *259possession by a fence as his line, or by a house or stable, for more than twenty-one years, his possession establishes his right. A person claiming as his own is, in law and reason, adverse to all the world,] [7] and as much so if he has never heard of an adverse claim as if he had always known of it. ’

“Now, gentlemen, was this land in possession of any party in this cause, or their predecessor in title? What is the evidence upon that question? The first witness called by the plaintiff, who speaks about the question of possession, was Mr. Jonathan Ziebach, who says he lived there, giving the date. He says, first, in answer to the question whether there was a fence in front on Market street: ‘ Not as long as I lived there.’ On cross-examination, he was asked this question: ‘ When was the flower garden first put there by the people living on the Rick side ? A. That I cannot say. I was not living in Millersburg at that time. Q. You left Millersburg about 1854, did you? A. In 1859. Q- At that time there was no flower garden there, was there ? A. No, sir. ’

“He was also asked whether he remembered when that log house was a hotel or tavern, and he says he recollects when that vacant space was used as a road-way for people to drive into the stable to feed their horses; that they drove around the house. Then he was asked: ‘ All used by the people that owned the log house — it was their road-way into the hotel ? A. Yes, the people that owned the hotel used'it. Q. After the hotel ceased to exist, after there was a hotel there no longer, then it was used as a garden ? Flowers were planted in it and shrubs? A. Yes, but not as long as I lived there. He was asked whether it had been fenced in as long as he lived there, and he said: ‘ It was not fenced in as long as I lived there; it was fenced in after that; I cannot tell you the time. Q. How long ago was it fenced in ? A. I cannot say how long it has been fenced in ; it was not fenced in as long as I had possession of it. Q. The Lightners used it all along after it was fenced in, too ? A. I judge so, they did; it belonged there.’

“ The Lightners obtained this property by deed in 1847, and this witness says, in answer to the question whether the Lightners used it all along after it was fenced in, ‘ I judge so, they did; it belonged there.’ You will observe that he does not fix the exact date, but simply says it was not fenced in as long as he had possession.

“ Mr. Ziebach sold this property in 1854; he left Millersburg in in 1859, so that, taking into consideration the date when the property was sold as 1854, his answer would amount to this, that, in 1854, it was not fenced in.

“ Suit was brought on Dec. 3, 1885, twenty-one years before that would be in 1864. If this defendant had exclusive, hostile possession from that time up to the time of the bringing of this suit, the verdict must be in his favor. The jury will recollect those dates. Suit was brought on Dec. 3, 1885. Mr. Rick was then in possession. If for a period of twenty-one years previous to that he had actual, *260exclusive possession of this tract of land, in the manner we have stated, in answer to the points presented, then the verdict must be for the defendant.

“ We have read to you what Mr. Ziebach says on that point. What does Mr. Swope say ? He says there was a fence put there, but is unable to give the date. In answer to a question of Mr. Jacobs whether or not it was before the war, he said it was. Well, the war was in 1864. If that is the correct date, to his knowledge and recollection, that this property was fenced up, you will observe that would be twenty-one years previous to the bringing of this suit. [So that, if the jury would find, from the testimony of Mr. Swope, that Mr. Rick, and those from whom he bought, held this property fenced in and used it from that time on, it would give him title, no matter what the deeds might say.] [5]

“ That is all the testimony bearing upon that point offered by the plaintiff, so far as we recollect it; if there is any more, the jury will remember it. What does the defendant say on that subject ? The first witness he called is Elias Weber. He says he cannot say exactly when that fence was put there, but fixes it as from thirty-five to forty years. That would be more than twenty-one years. Caroline Zerbe, who is a daughter of the Lightners, who bought in 1847, says the second year we lived there (they moved therein 1847, and the second year would be 1849) my mother used it continuously until Rick bought; we used the whole of it, had vegetables in it and flowers, and a large peachtree in the middle. If that testimony is correct, that is more than twenty-one years, because it would indicate it was fenced in in 1849, and from that time up to 1885 is thirty-six years. Mrs. Holtzman said, when upon the stand, that her mother bought in 1847, and that she used this space; that her uncle made the fence, and that her mother kept it up, claimed this ground and used it. If that evidence is to be believed, it is more than thirty-six years from that time to the date of the bringing of this suit.

“John Weber, being called, says he recollects of the using of this ground for the hotel; about thirty-five or forty years ago the fence was put up; the Lightners used it, and none of the others used it. The testimony of William Zerbe is to the same effect.

“Gentlemen, that is the testimony on the part of the defendant. Is there any testimony in this case anywhere offered by the plaintiff to show that he ever used this ground ? The court has no recollection of a single word of testimony to show that either Jacob Moyer, or his predecessor in title, ever went upon this ground, or even used it for any purpose.

“We have given you the law of this case. If the jury believe that this space of ground between the log house of Rick and the log house on the Moyer tract was in the exclusive possession of Rick and his predecessors in title for a period of more than twenty-one years, used by them in connection with the building continously *261for said period, enclosed by a fence, to which no entrance was had, except through the Rick property; that it was so used and occupied, without question or protest by any one, and without permission of any one, this constitutes such hostile and adverse user as will vest the title to said land in the defendant; and if the jury find that the log house of Rick, as now located, is within said lot of ground, the verdict must be for the defendant.

“ It is immaterial, then, what the surveys may show; it is immaterial what the deeds may show; it is immaterial whether Rick has more ground than his deed calls for and Moyer has less; all these questions are immaterial if the jury find that, for a period of twenty-one years, or over, the defendant, and those under whom he claims, had such a possession of the land. If you find those to be the facts, then the verdict must be for defendant.”

Verdict and judgment for defendant.

*The assignments of error*specified, 1-4, the rulings on the evidence, quoting the bills of exception, as above ; 5, 7, the portions of the charge included within brackets, quoting them; 6, the action of the court in not instructing the jury that the evidence in the case is not sufficient to constitute adverse possession; 8, the general tenor of the charge was misleading; it gave undue weight to the evidence of defendant offered to prove title by adverse possession.

*H. Willis Bland,*with him *Henry C. G. Reber,*for plaintiff in error.

The presumption of ownership from possession arises only when the character of the possession is wholly unexplained; when the possession and nothing more is shown. If the evidence of possession is shown to be equally consistent with an outstanding ownership in a third person, as with a title in the one having possession, the presumption is rebutted. Rawley *v.*Brown, 71 N. Y. 85 ; New York R. R. *v.*Hawes, 56 N. Y. 175.

It was competent to prove that Klohr did not claim title up to the house on the Moyer lot, in order that we might thereby qualify and explain the character of his possession of the strip north of the Moyer house.

The question propounded to Rick, contained some proof of his admission of the true line, and, as such, it should have been allowed.

The draft offered in evidence was shown by Mr. Tyson’s own testimony to be inaccurate and should, therefore, not have been admitted.

Where the evidence shows simply a qualified and subordinate interest, no title beyond that proved is to be presumed as against a superior title, even though a possession of twenty-one years be shown; in other words, possession, with consent of the owner, raises no presumption against such owner. The presumption, under such circumstances, continues until some alienation-is shown; the plaintiff having this ownership, did not lose it by permitting the defendant *262or his predecessors in title to be in possession. Jones *v.*Porter, 3 P. & W. 132.

The occupation of this space of ground by the defendant, under a mistake as to the boundary, and without intent to claim beyond the true line, is not possession adverse to the owner. Huckshorn *v.*Hartwig, 81 Mo. 648; Winn *v.*Abeles, 35 Kansas, 85 ; Houx *v.*Batteen, 68 Mo. 84.

The facts as testified to by the witnesses in this case do not constitute or amount to an adverse possession, and the court below should have so instructed the jury. Groftw. Weakland, 34 Pa. 304; Bradstreet *v.*Huntington, 3 Pet. 438.

In the absence of this requisite proof, it was the duty of the court below, as a question of law, to have instructed the jury that the facts in the case were insufficient to establish the defendant’s title by limitation. True, the court was not especially requested by the plaintiffs to give such instructions to the jury, but this omission, under the evidence, cannot operate to the prejudice of the plaintiff. Bisbing *v.*Third Nat. Bank, 93 Pa. 79; Fawcett *v.*Fawcett, 95 Pa. 376; Norton *v.*Lehn, 39 Leg. Int. 402.

The court assumed the facts as proved to be sufficient, and thus erroneously charged the jury that, if they believed these facts, the occasional use of the demanded premises would constitute hostile, continued, exclusive and adverse possession in law. Such possession is not sufficient. Wheeler *v.*Winn, 53 Pa. 130; Cooper *v.*Smith, 9 S. & R. 26; Blake *v.*Ham, 33 Me. 430; Richards *v.*Smith, 67 Tex. 610; Parker *v.*Wallis, 60 Md. 13 ; i A. K. Marshall, 106; Cooper *v.*Smith, 9 S. & R. 000; Shroder *v.*Breneman, 21 Pa. 228.

The plaintiff was not bound to enclose this space; it was not adapted for any special use, and, under the circumstances, did not admit of any other enjoyment. What is an adverse and exclusive possession must necessarily depend upon the character of the land, and the purpose to which it is adapted, and for which it is used. Bowen *v.*Guild, 130 Mass. 123.

Neither does the alleged silence or inactivity of the plaintiff, the result of defendant’s submission, destroy the plaintiff’s title. Miller *v.*Keene, 5 Watts, 349.

It is a settled rule that the doctrine of adverse possession is to be taken strictly, and not to be made by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner. Rung *v.*Shoneberger, 2 Watts, 23; Jackson *v.*Sharp, 9 Johns. 167; Wickham *v.*Conklin, 8 Johns. 228.

The proof relied on by the defendant does not show such adverse and notorious possession as the statute of limitations requires. Washabaugh *v.*Entriken, 34 Pa. 74 ; Groft *v.*Weakland, 34 Pa. 304; Shroder *v,*Breneman, 21 Pa. 225.

The law, as held in Brown *v.*McKinney, 9 Watts, 367, from which the court below read and re-read to the jury, is not dis*263puted, but, that it afforded the jury the light or information upon the subject matter of their inquiry, we deny. The case does not apply, because here the defendant was not in possession by “ a house or a fence as his line.” Of course we do not contend that, in order to constitute an actual adverse possession, the ground must, in every case, be enclosed by a fence; on the contrary, it is admitted that a fence is not actually necessary; it is merely evidence of the fact of occupancy (which fact did not exist in this case), but it is the actual occupancy itself connected with the claim of title that con-. stitutes the bar.

The court below seems to have been erroneously imbued with the doctrine that adverse possession in cases of boundaries holds with the same force as in the case of possession of one entire tract of land. Gray-'y. McCreary, 4 Yeates, 496; Comegys *v.*Carley, 3 Watts, 280; Harvey *v.*Harbach, 4 Phila. 49.

*H. P. Keyser, Jeff. Snyder*and *J. H. Jacobs,*for defendant in error.

The first specification of error of plaintiff is founded upon a false theory. It could be of no possible avail to Moyer that Ziebach claimed this disputed strip of ground unless the claim was assented to by Klohr, the defendant’s predecessor in title, and some agreement had between them.

The second specification of error has no merit. In Wolf *v.*Mishler, Mishler being the plaintiff in error, it was decided by this court that a man cannot settle or establish another’s rights by a settlement or agreement with his own agent, much less can he stop the running of the statute of limitations or* establish any rights by simply sending word through an agent to another not to erect his building on ground on which he, the builder, had been in possession for more than twenty-one years.

The fact that Rick has built his house ten inches north of the building line cannot avail the plaintiff in this case, and there was certainly no error in admitting the Tyson draft which the witness testified to was an accurate one and the result of his surveys.

In the fourth specification of error, the plaintiff objects to the court not allowing counsel to cross-examine as to questions not touched upon in the examination in chief and interjecting matters strictly within the province of the plaintiff’s proofs into defendant’s testimony. A witness on cross-examination will not be permitted to go into new matter which should have been used in his own case. Thomas *v.*Loose, Seaman & Cd., 114 Pa. 35.

The seventh assignment of error complains of that portion of the charge wherein the court quoted the language of the supreme court in Brown *v.*McKinney, 9 Watts, 567. The exact words of Justice Huston were used and we have yet to find out that there is error in any court reading an» opinion of this court to the jury when the same is applicable to the facts in any given case.

*264March 7, 1889.

As to the eighth assignment of error, we can only say that if the charge of the court gave greater weight to the defendant’s case than pleased the plaintiff, it was fully warranted by the evidence. The testimony produced by the defendant to establish title by adverse possession was clear, positive and unequivocal.

Per Curiam,

Judgment affirmed.