#### Jones *v.*Hughes.

Where one has acquired title by adverse possession, the mere fact that he had set back his fence more than twenty-one years before suit brought, thus throwing- the land in suit into a public road, will not vest title against him in an adjoining land-owner, where the title to the land upon which the road is laid is in dispute.

In such case, the bar of the statute of limitations is to be decided by the weight of the evidence, and it is not error to refuse to charge that “the evidence to prove the bar of the statute of limitations must be free from doubt, or the parties are to be remitted to their legal rights.”

Feb. 8, 1889.

Error, No. 220, Jan. T., 1889, to C. P. Montgomery Co., to review a judgment on a verdict for plaintiff in an action of trespass by Benjamin B. Hughes against Chalkley Jones, at March T., 1887, No. 13. Williams and McCollum, JJ., absent.

This action was brought Dec. 20, 1886, under the Act of 1842, to recover treble damages for cutting certain timber trees on land claimed by plaintiff. Plea, not guilty.

On the trial, before Weand, J., it appeared that a public road separated the enclosed portions of plaintiff’s and defendant’s properties. Plaintiff produced a deed reciting the middle of the road as the division line. Defendant gave in evidence a survey which located the line beyond the trees, making the land upon which they stood belong to the defendant. Plaintiff then showed title to the land in dispute by adverse possession for twenty-one years prior to 1862 or 1863, when his fence was moved back, throwing the trees outside of his enclosure and within the public road.

The title claimed by defendant was in fact in his wife, but the court below, on the trial, ruled that the defendant could justify under his wife’s title without special plea.

The further facts appear by the charge of the court below, which was, in part, as follows, by Weand, J. :

“ Title to property can be acquired in various ways, and it has been decided by the supreme court that one of the highest titles is that acquired by adverse user o'r possession; or, in other words, [if Mr. Hughes has had adverse possession of this strip of ground for twenty-one years, he would have as good and as absolute title thereto as if he had as good a deed as any human power could give him; and, in the opinion of the court, although here again it is a question for you, this case rests mainly upon this question of adverse title by possession. Now, this title must be for twenty-one years either in Mr. Hughes, the plaintiff, or in his predecessors in the title, that is, in others who owned it before him; and these twenty-one years must be prior to the time when he moved his fence, if he did move it] [5] Now, as I have said, the testimony of Mr. Hughes is that the fence was moved or changed some eighteen or twenty years ago, but the testimony of other witnesses would seem to place it from 1862 to 1864. Mr. Hughes became the owner of these premises in 1849, according to his deed, but he swears, and so do his witnesses, that this fence had enclosed this ground many, many *591years before he got his paper-title, and therefore, whatever time you find that his ancestors, or his predecessors in the title, had this fence beyond the line of the trees, must be added to the period of time following 1849 up to the time when he says he removed them. [In other words, to make it plain to you, if you find as a fact that this fence was removed back of the trees in 1862 or 1863, and then find that, for twenty-one years before that, either Mr. Hughes or his ancestors had the fence out beyond the trees, his title would be good against the world.”] [6]

[“ Now, it is claimed, by the defendant in this case, that, even if you find that he had 21 years’ possession of them, and had them enclosed by his fence, still he yielded up that right and restored these trees to their former owner by this removal of the fence, and, it is claimed, thereby, and by so doing, the title again reverted to Mr. Jones. Now this, in one view of the case, might be a question of evidence, and therefore you will consider as to whether there is any evidence in this case which would go to show that Mr. Hughes did any act or thing from which you can find that he intended to release his right to these trees in favor of Mr. Jones. Because it does not make any difference as to whether he intended to give them to anybody else. Mr: Jones here must stand upon his own title, and if he claims that Mr. Hughes has surrendered his possession of the trees to him he must establish some facts and circumstances from which you can find that as a fact. Now, the court cannot recall a single fact or circumstance which would indicate any act on the part of Mr. Hughes with reference to Mr. Jones, which would go to show that he had conceded the right to these trees to be in Mr. Jones, unless we take the interview at the time of the survey in 1884, and that is not binding upon Mr. Hughes, because, although, on the evening of the first day, he might have said to Mr. Jones, “ You are welcome to these trees, they are not mine,” yet the next morning he retracted that and sent word to Mr. Jones not to remove these trees. Therefore the admission made by him on that occasion would not be binding upon him,] [7] and would not be conclusive evidence that he had ever yielded his claim to these trees in favor of Mr. Jones. [Now, if you can find no facts or circumstances, therefore, from which you can say that he had so yielded possession to Mr. Jones, then I charge you, as a matter of law, that the mere fact that he removed this fence, although it has thus stood removed for twenty-one years and upwards, would not revest the possession or title to the trees in Mr. Jones, because, the moment that twenty-one years .closed over this adverse user, there was an absolute title in Mr. Hughes, and he could only lose that title by such acts and circumstances as would vest a complete title in another who claims it;] [8] or, in other words, if, twenty-one years ago, he had set this fence back, Mr. Jones could only now claim title to them by showing that he had exercised adverse possession to them and had claimed them adversely against Mr. Hughes for a period of *592twenty-one years himself. He would have to set up the same kind of title during twenty-one years that Mr. Hughes had set up against him. [Now, what fact or circumstance has been developed in this case to show that, during that length of time, Mr. Jones has asserted this title or had taken possession of these trees ? Did he put any fence to show that he claimed them? Did he place any marks on them? or did he do any act, or is there any circumstance, which would indicate that to you, up to the time when he cut them down in 1884? If he has not, it can make no difference in this case whether this fence stood back twenty-one years or not.”] [9]

[“ Whatever value you find, however, you will multiply it by three and you will allow interest on that from the first day of May, 1884, and render your verdict for that amount.”] • [12]

The defendant requested the court to charge the jury as follows:

“ 1. In case of disputed surveys, the rule of law is that the plaintiff must produce clear and satisfactory evidence that his survey is correct. *Anszver:*This is true. The plaintiff must produce satisfactory evidence, or, in other words, such evidence as satisfies reasonable men that his survey was correct. But you are to be guided by the weight of the testimony in determining what is satisfactory evidence.”

“ 2. The evidence to prove the bar of the statute of limitations must be free from doubt, or the parties are remitted to their legal rights. *Anszver:*I cannot affirm this point, as submitted. You are to be guided by the weight of the testimony, and you are to decide from that as to whether the plaintiff has convinced you by the weight of the testimony that he had twenty-one years’ undisputed possession of the land on which these trees stood.”

“ 3. The bar which the. statute would present is remitted if the ground has been restored, for more than twenty-one years, to its original possession. *Anszver:*I cannot affirm this point, and I refer the jury to my charge, in which I have stated that if Mr. Hughes had acquired title by twenty-one years’ adverse possession, the mere fact that he had set back his fence would not of itself vest a title against him in Mr. Jones.”

*“4.*It is admitted that, since 1862, the trees were all within the original limits, and therefore the verdict must be for the defendant, as his possession was from that date, being more than twenty-one years before suit. *Anszver:*I cannot so charge you. This would not be the case unless you find that, for twenty-one years since Mr. Hughes removed his fence, if you find he did remove it, Mr. Jones had, during all that time, undisputed possession; or, in other words, if you find that, for more than twenty-one years, Mr. Hughes had removed this fence so as to throw this property out in the roadway, that fact would not again restore the title to these frees in Mr. Jones, unless he, during these twenty-one years, had had adverse, hostile, uninterrupted possession of the property on which they stood. And, as I have said to you, the court can see no testimony in this case *593that he had ever exercised any right of ownership over them until he cut them down in 1884, but if the jury can find any such facts in the case, of course it is in their power so to do.”

The jury returned a verdict in favor of the plaintiff for $266.22, separating the items as follows: Damages, $70; interest, *$*18.74; total, $88.74; tripled, $266.22. Subsequently amotion for a new trial was overruled on condition that the plaintiff should agree that the verdict should be reduced by two-thirds of the interest allowed, under the ruling in Dunbar Furnace Co. *v.*Fairchild, 45 Leg. Int. 404. This agreement was subsequently filed and judgment was entered for $228.74. The defendant then took this writ.

*The assignments of error*specified, 1-4, the answers to defendant’s points, quoting the points and answers; 5-9 and 12, the portions of the charge within brackets, quoting them; 10, that the whole charge was unfavorable to the defendant on all points and was misleading to the jury, especially that part where the court required that the title must be proved to be in Mr. Jones instead of Mrs. Jones, his wife; 11, that the court erred in not charging that Mr. Jones stood on his wife’s title, and that, if she had title, Mr. Hughes could not recover; 13, in directing judgment for the plaintiff for the amount of the verdict ascertained by the instruction specified in the 12th assignment of error.

*Charles*Hunsicker, for plaintiff in error.

The instruction under the first assignment of error was equivocal and enabled the jury to mix up other evidence than that of the surveyors.

The statute does not protect the wrong-doer except as to his actual enclosure and improvements: Hall *v.*Powel, 4 S. & R. 456; Miller *v.*Shaw, 7 S. & R. 129; Farley *v.*Lenox, 8 S. & R. 392; Sheik *v.*McElroy, 20 Pa. 26; Royer *v.*Benlow, 10 S. & R. 303; McCaffrey *v.*Fisher, 4 W. & S. 181; McCall *v.*Neely, 3 Watts, 69; Sweeney *v.*McCulloch, 3 Watts, 345 ; Washabaugh *v.*Entriken, 36 Pa. 513; Poignand *v.*Smith, 8 Pick. 272. In the case at bar, there was no attempt to show exactly where the fence stood, nor how long it stood, nor was there any draft supported by evidence where the fence stood.

The rule laid down by the court requires a purchaser to go back to within 21 years after a title of the commonwealth passed to ascertain whether, during any portion of that time, adverse possession had ripened into a right. This is clearly error, as he is only bound to go back 21 years from the date of his purchase.

After the fence was moved, how could the defendant have asserted ownership? How could he have maintained ejectment? On whom would the writ be served ? What return would have been made to the writ ?

The presumption that an owner of land has title to the middle of the street can be removed by evidence: so decided in Paul *v.*Carver, 24 Pa. 207; Grier *v.*Sampson, 27 Pa. 183.

*594Adverse possession by enclosure goes in the bases of trespass : Stephens *v.*Leach, 19 Pa. 262.

Schall *v.*R. R. Co., 35 Pa. 191, recognizes the point contended for by us that there must be continuous possession for 21 years before suit brought.

The 13th assignment is ruled by Dunbar Furnace Co. *v.*Fair-child, 45 Leg. Int. 404.

*N. H. Larzelere,*with him *M. M Gibson,*for defendant in error.

It is the duty of one claiming trees to ascertain from the owner of the adjacent tract whether or not the line to which he claims is recognized by him, and, if not, to delay his cutting until the matter can be settled: Watson *v.*Rynd, 76 Pa. 61.

Adverse possession may avail when the paper-title fails: McCombs *v.*Rowan, 59 Pa. 416; Lund *v.*Brown, 14 W. N. C. 489.

Evidence, though slight, tending to show the occupation of land in dispute for over twenty-one years, should go to the jury on the question of adverse possession: Thompson *v.*Kauffelt, 17 W. N. C. 260.

The doctrine of plaintiff in error that, by removing his fence after title by adverse possession had ripened, Mr. Hughes surrendered the land in controversy to the owner of the opposite property, is in the teeth of the decisions: Schall *v.*R. R. Co., 35 Pa. 191; Schuylkill, &c., Co. *v,*McCreary, 58 Pa. 304; Graffius *v.*Tottenham, 1 W. & S. 494; Olwine *v.*Holman, 23 Pa. 279.

The 12th assignment of error was corrected by the agreement to reduce the verdict.

In the 13th assignment, the plaintiff in error misconceives the practice. The presumption of law is that the jury gave all the damages authorized by the statute: Clark *v.*Sargeant, 112 Pa. 16.

Hall *v.*Powel, and Royer *v.*Benlow, were cases of a claimant by improvement, and, in the former case, the court declined to give any opinion as to the question involved in this case. Miller *v.*Shaw was the case of a settler cultivating unseated lands. Farley *v.*Lenox, Sweeney *v.*McCulloch, and McCaffrey *v.*Fisher, were cases of entry without title, or color of title, on unseated lands. Washabaugh *v.*Entriken was a case of possession of a small portion of a large tract without enclosure or continued cultivation, and it was held that no title to the whole was obtained. Poignand *v.*Smith was not a case of adverse possession under the statute, but a disseisin of a mortgagee. McCall *v.*Neely decides that, to give effect to the statute of limitations, the possession of an occupant, by a color-able title, is coextensive with his title; but the possession of an avowed intruder is confined to the land actually occupied by him.

Entry is by color of title when it is made under a bona fide, and not a pretended, claim to a title existing in another. Therefore, the possession of Mr. Hughes under his deed would be to the middle of the road, without reference to the extent of his right under his predecessors.

*595Feb. 18, 1889.

Per Curiam,

When a man has maintained adverse and hostile possession to land for twenty-one years, he acquires an indefeasible title, as good as any known to the law, though not perhaps as satisfactory or convenient. He need no longer “ keep his flag flying.” It has done its work, and he may haul it down. It was not error, therefore, to decline the defendant’s third point, and to instruct the jury that “ if Mr. Hughes has acquired title by twenty-one years’ adverse possession, the mere fact that he had set back his fence would not of itself vest a title against him in Mr. Jones.” It requires no argument to show that, when a man has acquired title to a strip of ground, the mere fact of his setting back his fence for his own convenience cannot effect his right and vest the title to the land in another. Nor was it error to refuse to instruct the jury that “the evidence to prove the bar of the statute of limitations must be free from doubt or the parties are to be remitted to their legal rights.” The question of the bar of the statute is to be decided by the weight of the evidence, as in most other questions of fact in civil causes. The error alleged in the thirteenth assignment was cured by the action of the court below upon the motion for a new trial. The verdict was reduced to its proper amount, and the plaintiff filed a remittitur for the excess. There is nothing in the other assignments to require comment. The charge was fair, accurate and satisfactory.

Judgment affirmed.