#### Bellas *v.*Pardoe.

In an action to recover damages for the alleged obstruction of a lane which had been mutually used by both plaintiff and defendant, as a right of way for more than twenty-one years, the court charged that the mere matter of changing the location of a fence or fences, on the one side or the other, by one of the parties, but so as not to operate as a material obstruction to the passage over the lane, would not authorize the other party to close up the lane entirely. *Held,*not to be error.

May 24, 1888.

Error, No. 100, July T., 1887, to C. P. Northumberland Co., to review a judgment on a verdict for the plaintiff in an action of trespass on the case by Jos. Pardoe against Wm. Bellas, at Sept. T., 1883, No. 256. Trunkey, J., absent.

The declaration appears in the charge of the court below. The plea was not guilty.

The facts are stated in the charge of the court below, as follows, by Rockefeller, P. J.:

“ The plaintiff alleges in the first count of his declaration that he was seized of his demesne in fee of a certain tract of land, in Chillisquaque township, containing 50.2 acres. It is averred that he was entitled to the lane or passage-way, being located and lying between the close of the plaintiff and the close of the defendant, and dedicated to the mutual use, benefit and enjoyment of said plaintiff and defendant and those under whom they hold, so that they and those under whom they hold might enjoy and have a right of way and unobstructed passage to and from their respective closes and said public high-way, meaning a public highway in the neighborhood, doubtless the one mentioned by the witnesses as the Irishtown road. And the evidence on both sides shows that the, plaintiff and those under whom he holds, and the defendant under whom he holds, did use and enjoy the lane in question in that way; that each used it for the purposes of their respective farms in their farming opera*352tions. The plaintiff then gave evidence to show that, sometime in July or August, 1883, on an occasion when he was hauling his manure from his buildings out upon his fields, through, over and upon the lane in question, that the defendant placed an obstruction in it by putting posts and rails across it so as to prevent him from passing through with his team ; that such obstruction remained there for some time, and that, in consequence thereof, he was prevented from having the use of this road or lane as he had the right to use and enjoy it. There is no dispute as to this obstruction having been made by the defendant as alleged by the plaintiff, and, if there was nothing more in the case, the only question to be determined by the jury would be one of damages.

The defendant alleges that he is not liable to pay the plaintiff damages; or, in other words, that he, the defendant, had the right to obstruct this lane in the manner which he did, and at the time he did, and denies the plaintiff’s right to have a verdict for any amount whatever. The defendant does not deny the existence of the lane; he does not deny its use, but, as I understand it, his defence is that this lane was, on different occasions prior to the time of the alleged obstruction, obstructed or closed up by the plaintiff or those under whom he holds. If the evidence shows that, we think the defendant would have a good defence. If this' lane was open, kept up and used by these parties jointly, they each had an equal right to its use, and if one closed it up he could not complain if it was closed by the other. That seems to be the allegation and what causes the contest to arise in this case. The defendant alleges that on different occasions prior to the obstruction that the plaintiff, and those under whom he holds, crowded over by erecting a fence or fences in the lane, and thus obstructing to a considerable extent the use of the lane itself. This, he says, was the cause of his putting in the obstructions which he did in July or August, 1883. The evidence is that, prior to Mr. Pardoe getting the farm, that the Cauls, or those under whom he holds, changed the fence — changed the place where the bars were at an early day, and placed them further south; that at some places the fence has been moved over nearly or quite upon the line. I am now speaking of the northern part of this lane. Just at that part, for some distance, it seems, that the lane never was opened, but it was open for some rods above Pardoe’s barn. [At this point, it seems, that Bellas, having moved his buildings from the south part of his farm up to the north part, made a turn up in the vicinity of the place where the fence was set over by those owning the Pardoe farm and changed the course of this lane so as to get into his buildings. These changes were made from time to time, and there doesn’t seem to be any complaint in former years about them, but still that is what is alleged by Bellas, as I understand it, as a reason why he had a right to close up this lane entirely down at the wild cherry tree. That seems to be one of the important branches in this case. If the plaintiff, Joseph *353Pardoe, or those under whom he holds, closed up the lane in question so as to materially interfere with the use and passage of the lane, then, as I before stated, we think Pardoe would have no right to complain if Bellas closed it entirely up. But I am of opinion, and so instruct you, that the mere matter of changing the location of a fence or fences, on the one side or the other, but so as not to materially obstruct or interrupt the passage over and upon the lane would not authorize either party to close up this lane entirely.”]

The plaintiff presented the following points :

“ i. Twenty-one years uninterrupted and adverse enjoyment of a right of way, over the land of another, confers title, and, without-evidence to explain how it began, such enjoyment is presumed to have been in pursuance of a full and unqualified grant. *Ans.*This point is affirmed.” [i]

“ 2. If the jury believe, from the evidence, that Joseph Pardoe, and those under whom he claims, have uninterruptedly used the lane in question, in common with William Bellas, and those under whom he claims, in the cultivation of their farms adjoining said lane, for twenty-one years and upwards, prior to the bringing of this suit, the presumption is that such use is founded upon a grant. *Ans.*This point is affirmed.” [2.]

“ 3. The question for the jury is, did the fence, placed in the lane by Bellas, interfere with and obstruct the right, acquired by Pardoe and those under whom he holds by twenty-one years adverse use prior to bringing this suit, to pass over the road so obstructed, at the place of said obstruction; if so, the verdict should be for the plains tiff *Ans.*This is correct, unless the plaintiff, or those under whom he claims, themselves so encroached upon the lane with their own fences as to materially close or obstruct its use by the defendant, it being admitted that the lane was dedicated to the mutual use, benefit and enjoyment of the plaintiff and defendant and those under whom they hold, so that they and those under whom they claim might enjoy and have a right of way and unobstructed passage to and from their respective farms or closes and a certain public road.” [3]

The defendant presented the following points :

“ 1. It is shown, by the evidence of both plaintiff and defendant, that the lane in question was originally opened for the benefit or enjoyment of the two farms now owned by Pardoe, the plaintiff, and Bellas, the defendant. *Ans.*I cannot say that it is shown by the evidence of both plaintiff and defendant that the lane was originally opened for the benefit or enjoyment of the two farms now owned by the plaintiff and defendant respectively, but it does show that it was so used, and the first count in the plaintiff’s declaration avers that it was so dedicated, and I do not understand this to be a matter of dispute in the case.” [4]

“ 2. Neither of the parties to this suit was in the exclusive possession of the lane in question and therefore cannot claim the land belonging to the other by reason of using the lane for a period of *354twenty-one years and over. *Ans.*In one sense, neither of the parties was in the exclusive possession of the lane in question, or had the exclusive right of way, but I cannot say that if they or either of them used it, and had the uninterrupted and adverse enjoyment of it for twenty-one years, he or they cannot claim the same by reason of such use.” [5]

“ 6. The plaintiff having declared in this action that the lane in question was dedicated to the mutual use and benefit of both plaintiff and defendant, which is admitted by the defendant as true, and if the jury believes that Pardoe, or the parties under whom he claims, interrupted the defendant in the use of it, and continued such interruption by placing the fence in question in the road, and refused to remove it when requested, before Mr. Bellas placed any obstructions in the road, the plaintiff cannot recover. *Ans.*This is correct if such interruption was a material and substantial interruption. If it was but a slight obstruction, not materially and substantially interrupting or obstructing the defendant in the use of the lane, I cannot charge you that the plaintiff cannot recover.” [6]

“ 8. From all the evidence in the case, the defendant is entitled to a verdict in his favor. *Ans.*I refuse to charge you as requested in this point.” [7]

Verdict and judgment for plaintiff for $100.

*The assignments of error*specified, 1-3, the answers to plaintiff’s points, quoting the points and answers; 4-7, the answers to defendant’s points, quoting the points and answers; and, 8, the portion of the charge included within brackets, quoting it.

N *B. Boyer,*for plaintiff in error.

One of the parties having encroached upon the lane with his fence, the other had a right to consider the easement at an end. Hall *v.*McCaughey, 51 Pa. 43; Corning *v.*Gould, 16 Wend. 531.

The evidence showed that the obstruction was of a permanent nature; it therefore, amounted to proof of abandonment of the entire lane. McCarty *v.*Kitchenman, 47 Pa. 239; Dyer *v.*Sanford, 9 Metcalf, 395 ; Pope *v.*Devereux, 5 Gray, 409; Queen *v.*Chorley, 12 Ad. & EL, N. R. 515 ; Moore *v.*Rawson, 6 B. &C. 332; Liggins *v.*Inge, 7 Bing. 682.

*McCleery & Voris,*for defendant in error,

not heard. — In Hall *v.*McCaughey, there was a mutual dedication by adjoining lot owners, by instrument in writing duly recorded, of a certain portion of their respective lots for a lane to be used by them in the use of their lots. One of the lot owners erected a building on that part ot his lot dedicated to the lane, and it was held that the other lot owners could maintain trespass. This case has no other application to the case at bar except to sustain the right of Pardoe to maintain trespass against Bellas.

Dyer *v.*Sanford, and Corning *v.*Gould, sustain the court in its answer to the 6th point and its charge to the jury.

*355Oct 1, 1888.

The lane between Pardoe and Bellas has been used by their predecessors in title, and by them in the cultivation of their farms, and can still be used for that purpose; there has been no cessation in such use, and no attempt made to prevent such use except on the part of Bellas in the erection of a panel of fence across the lane in 1883. Pardoe, and those under whom he holds, have not placed any material obstructions in the lane, have done no act of so decisive and conclusive a character as to prove their intention to abandon the use of the lane, have done no act utterly incompatible, or even materially incompatible, with the future use of the lane. Bellas, therefore, was not justified in obstructing the lane and interfering with the vested rights of Pardoe.

Per Curiam,

A careful examination of this case satisfies us that the plaintiff in error has nothing of which he ought to complain.

The case was one principally of facts which, under proper instructions, were submitted to the jury. It follows that none of the assignments of error can be sustained.

The judgment is affirmed.