#### Haupt *v.*Haupt.

In an action of ejectment, the plaintiff offered to prove by the evidence of the borough regulator, who was called in Rebuttal, that the witness had run the line between the lots in dispute and had made a correct map of them, and *that*the dividing line between the lots was exactly located upon the ground, as established by the papers. *Held,*that the evidence was properly admitted, although defendant’s evidence was directed tp the establishment of a division line by consent or adverse user.

In an action of ejectment by the executors of a decedent, one of the executors, who was the son of the decedent, was objected to as a witness on the ground of interest, and exception taken, but no objection or-exception to the testimony was taken when it was given in evidence. *Held,*that the son was a generally competent witness, and, as no exception to the testimony was taken, there was nothing for the supreme court to review.

It is an immaterial error to allow an improper question, where the witness answers by saying, “ I couldn’t tell.”

May 25, 1888.

Error, No. 4, July T., 1888, to C. P. Northumberland Co., to review a judgment on a verdict in favor of -the plaintiffs, in an action of ejectment, by F. L. Haupt and W. D. Haupt, executors of Sebastian Haupt, deceased, against Henry Haupt, at No. 47, May T., 1884. Trunkey, J., absent.

The writ, issued April 25, 1884, claimed a small strip of land covered by the wall and cornice of the defendant’s house. The defendant pleaded not guilty.

*309At the trial, R. F. Brown, a witness for defendant, was asked these questions, on cross-examination: “ Q. How far east of the line you run back from the curb stone would the true line be between Henry and Sebastian Haupt’s property, as fixed by their papers in the town plot? ”

Defendant objected because it was not proposed to show that there was any line shown by the papers that passed between Sebastian and Henry Haupt. Objection overruled, evidence admitted and exception. [1]

The question was then repeated, as follows: “ Q. How far east of the line which you have run, to clear the cornice, from the crack in the stones, would the true line be between Henry Haupt and Sebastian Haupt’s estate, taking the papers between them, for the establishing of it, and the town plot, to regulate your finding ? A. I couldn’t tell; we took the line on the curb, the division there, which shows well that there are two lines coming together, and supposed it was put in there, or fixed there, by mutual agreement between the parties.”

Plaintiff, in rebuttal, called A. F. Clapp, and proposed to prove by him that he was the borough regulator and had filled the position for several years; that he ran the lines of lots 24 and 25, in the borough of Sunbury, and had made a correct map of them, and to' prove by him where the dividing line of the lot of Henry Haupt and Sebastian Haupt was actually located upon the ground, as established by their papers.

Defendant objected: “ 1. Because the plaintiffs put in evidence their title without description, except as to numbers of lots and their writ describing the strip of land, without evidence as to its location having been put in, and the plaintiffs having rested their case, must now be held to a rebuttal of the defendant’s testimony; the defendant has put in his case, and the plaintiffs cannot now re-open their case to add new testimony. 2. Because the defence offered no testimony as to the official survey of lots or original lines, but confined themselves to the establishment of the division line consented to by the parties and which has existed since 1846 without interruption, and the plaintiffs must confine themselves to a rebuttal of that testimony. 3. Because there is no official starting point for the establishment of the original lines of the lots of the borough, and, that being a matter of conjecture or guess-work upon the part of the surveyors, the evidence of it should have been offered when the plaintiffs put in their case in chief and cannot now be introduced. 4. The defendant, having confined himself to the establishment of a mutual line between himself and the plaintiffs, and having shown possession of the premises in dispute for a period of over twenty-one years, the original line, even if it could be established, would have no bearing upon the case, and is therefore irrelevant.”

Objections overruled, evidence admitted, and exception. [2]

*310The witness then testified as to the location of the division line as claimed by plaintiff.

Dr. F. L. HaupFwas sworn on his voir dire and examined as follows: “Q. You are a son of Sebastian Haupt? A. I believe I am, I have always been taught to believe I was. Q. You are the executor of the estate? A. I am one of them. Q. You have acted ever since your father’s death ? A. I have. Q. You are one of the plaintiffs in this suit ? A. I am.”

Defendant objected to the competency of the witness on the ground of interest. Objection overruled, witness admitted, and exception. [3]

The witness then testified, without further objection, to facts occurring in the life-time of Sebastian Haupt, which tended to establish plaintiffs’ case.

The charge of the court was as follows, by Cummin, P. J.:

“ We find that, in 1839, on May 20, Henry Haupt, this defendant, and Sebastian Haupt, his brother, who is the deceased party, plaintiff in this case, acquired title to one lot of land and part of another in this borough. The whole lot they were entitled to was numbered 24, and they acquired by this deed also the western half of lot numbered 25. This put into them, then, the title to a lot and a-half of ground, and you have seen by the papers and maps in evidence that these lots are sixty feet in width, so that they acquired ninety feet in width, extending from Market street back to an alley. [On Feb. 15, 1840, just the February following and less than a year from the time they acquired this title, they made a division of this land and entered into a deed of partition whereby they divided this lot and a-half of land and they agreed in that paper that Flenry should have the half of lot numbered 25 and the one-fourth of lot numbered 24, making and being 45 feet (these words are recited in this deed), and that Sebastian should have the remaining three-fourths of lot numbered 24, being 45 feet. This was their solemn act, reduced to writing subsequently, and fixed the rights of these parties, unless something since that time has changed it. Thus, by their own acts, reduced to writing and put upon the record, they have said where this line is.] [4] About this time, or perhaps earlier, a fence was put up between these parties. The defendant showed this old fence line extending along the western side of the smoke-house and forming a part of the same line; that there was a pump in the line that had two handles, one on each side, so that these owners each could go to that pump without interfering with the other. The plaintiffs established this same line going on further towards the alley by finding that it was exactly in line with the garden-house that had been put up later, and with the stable that had been put up by Sebastian Haupt. So that there can be no doubt at all that these parties did establish a line, not only by their deed, but by their acts upon the ground. This fixes that line, then, from the eastern side of that stable, along by the eastern side of the garden-house, along by the *311western side of the old smoke-house, directly through the center of the pump-stock and up to the buildings that were on the front of the lot. Just where this line came to when it touched the buildings in front is not very definite in my recollection of this evidence. On Sebastian’s side of the line was a cabinetmaker’s shop, and on Henry’s side was a saddler’s shop, and it is claimed by the plaintiffs here that there was a space of about a foot between these two buildings that was boarded up in front by a board which stood up and down in that space, and reasons were given by the witnesses why they could remember about that board being there. That was the situation prior to the erection of any of these other buildings that were subsequently put there. This stable of Sebastian’s was not built as early as the smoke-house, nor, perhaps, as early as the pump. It was built in 1849 or 1850, several years after this deed of partition. But he, as is testified to by the witnesses, put this building directly on this same line with the smoke house, and that ran through the center of the pump. In 1865 Sebastian tore down the cabinetmaker’s shop, and this left the west side of the saddler’s shop exposed, and the plaintiffs claim that the defendant, by boarding up that saddler’s shop, encroached an inch over that line, and the testimony is that there was some little dispute at the time. In 1866, the next year, Sebastian built his brick building, probably beginning it in 1865. The evidence is that it was built in 1865 or 1866, and when he tore down the cabinet shop and put up his brick building, he left an alley on the east side next to Henry. Four years later, in 1870, Henry Haupt, the defendant, erected his brick building, and there is some dispute about the location of some posts that were found along the western side of his cellar. Some of the defendant’s witnesses state that the man who carried the mortar to the masons walked upon the bank inside of these posts with his hod. Another witness testifies that he sat on the bank with his back against one of these posts and his feet over the excavation that was made for the cellar wall. Some of the plaintiffs’ witnesses testify that when this cellar was dug these fence posts fell into the cellar; that they were either undermined or dug around so closely that they could not remain standing and fell into the cellar. In 1871, Henry Haupt, the defendant, built an addition to the back of his main building. Some dispute arose here again about this line, and the defendant sent for David Rockefeller, or brought him there, and he gave him the line. The building was then built, and whether it was erected directly on the line, or whether any part of it came up to the line that David Rockefeller gave him, will be for you to recollect and determine from the evidence.

“ Now, you will recollect that this is down to 1871, and we have the first addition built. Now, go back to Jan. 15,1870. At that time, Sebastian Haupt was veiy seriously injured from which he never fully recovered, as it seems by the evidence. He was so badly inj ured that he was confined to his bed for a long time, and he died April *31212, 1873. In 1882, the second addition was built by Henry Haupt, the defendant. There is much testimony in regard to incidents that occurred at the time these buildings were put up, and the things that were found along there, which will be of more or less use to you in arriving at the truth of this case. But you will find that the principal dispute in the case is the encroachment of the front of the building by the cornice, and in part by some of the wall. The plaintiffs claim that the brick wall of the defendant’s building is over on their land from two and three-quarters to four and one-quarter inches at the front of it, these” two measurements arising from their having been made by a steel tape and a pole; that the cornice projects beyond that from twenty and one-quarter to twenty-two and three-quarter inches, the same difference here arising from the measurement being made with a tape or a pole. The plaintiffs also claim that there are encroachments of less extent further back, and that thus the defendant has encroached upon them to the extent of the land described in the writ.

“ The defendant claims that there are no encroachments whatever. He says that Sebastian Haupt admitted that the building was back far enough to clear the cornice. To meet this, it is claimed, on the other side, that, at the time when it is alleged Sebastian Plaupt made this declaration, he could not have been out of his bed, and so could not have made this declaration at the place where the witnesses testified it occurred. These are matters for you to consider. One thing is certain in this case, however, and that is that both parties claim to the line of the old fence; there is no dispute about that. They have both established it, and that is the line we must go to, no matter whom it hits or whom it hurts. Now, where was that old fence and where would a line projected to the front from it carry you ? If it is the line, as claimed by the plaintiffs here, then the plaintiffs are entitled to recover, if not, then your verdict should be for the defendant.

[“A number of surveyors have been called who have made measurements' about these lots. Their testimony, in connection with the maps that have been made or referred to by them, is proper for you to consider. The plaintiffs’ surveyors measured from the Bassler corner which they claim is an old established corner for that block of lots, and also from the marked line on Sebastian Haupt’s building, which was made there under the direction of David Rockefeller, who was the regulator of this borough at the time. By measuring from both of these points, they say that the true line is as claimed by the plaintiffs; that the defendant has encroached upon the plaintiffs’ land to the extent described in the writ;] [5] that this line which they find from actual measurement from the Bassler corner, and from the mark on the Sebastian Haupt building, corresponds exactly with the monuments now remaining upon the ground. As you will remember, the pump has been taken out and the well filled up; the old smoke-house has been destroyed, but the garden-house *313and stable are monuments upon the ground to-day, which the testimony shows were directly in the same line that the smoke-house and pump were.

“The defendant’s surveyor did not measure from any established corner in endeavoring to arrive at the line between these buildings, and, indeed, he said in his testimony that he did not go there to establish a line. He found a point in the curbstone which he assumed to be the line between these parties, and then, after ascertaining the correct line of Market street, he ran a line at right angles at this point in the curb, and claimed that that was the correct line. This line, if it be the true line, is just about sufficient to avoid these alleged-encroachments, and, therefore, if you find that to be the true line, defendant would be entitled to your verdict in this case. This point in the curb, where the defendant’s surveyor started from, was a small stone. It seems that Henry Haupt’s curb stone is of one kind of stone, dressed in a certain way, and that the curbstone in front of Sebastian Haupt’s property is different, and, at the point where these two curbs came together, was a small stone about six inches long, and, as I remember the testimony, the surveyor started from the western side of the six inches, supposing that that six inch sto.ne' belonged to Henry Haupt, and taking it as part of his curb, as it was apparently about the same width and dressed in the same way. This., you will remember, was met by the testimony of Dr. Haupt,.a witness on the part of the plaintiffs, who testified, and brought his book to corroborate his evidence, that he had that stone put in there himself, and that it was not a part of the curbstone of Henry Haupt at all. Thus disclosing, if his evidence is believed, an error of á.t least six inches, to start with, in the testimony of the defendant’s, surveyor. But when you get back of that, if you should go back.of the six inches, what right have you to say that that is the correct point to start from in ascertaining the line between these buildings. Were the respective owners brought together at any time, and d id they say their curb should go to such and such a place ? It is true; a man is not likely to curb more than his own property, because every foot and every inch costs money, but is that a sufficient guide to go by to ascertain the property lines ? Is it sufficient, if it should contradict other monuments upon the ground, such as the garden-house and the stable? These are matters for you to consider. Now, just how the line running at right angles from this place in the curb corresponds, with the line of the old stable or the garden-house, we do hot know definitely, because the surveyor who extended this line out at right angles to the street did not go back far enough. He did not extend the line on through by the garden-house and stable, and wé do not know just exactly where it would have come out, but that can be ascertained, with some degree of accuracy, by- comparing it with the other lines that were actually surveyed. ':

[“There is another matter that it is perhaps necessary to call your attention to. In 1865 or 1866, when Sebastian Haupt built *314upon his property, he discovered, or it was brought to his attention by some person, that his back building was a foot further out on Market Square than he was entitled to go; that if he built the new building upon the true line, he would have an offset of a foot. It seems that he consulted the borough regulator at the time, and from him obtained permission (whether that permission was worth anything is of no materiality to us), to build out one foot upon Market Square. You will remember that this was long after Sebastian Haupt had acquired title to three-fourths of lot numbered 24. He got leave to take a foot on the upper side, and he has a right to it if anybody has; it has nothing to do with the other part of the lot. If he had bought a foot of ground there he would have added it to his 45 feet, and would then have had 46, and it would have been his and nobody else’s. Nor could any one participate in it by moving his line back and forth; that foot must certainly be excluded; it belongs to Sebastian Haupt if anybody, and no part of it can belong to Henry Haupt.] [6]

[“ In addition to the testimony of the witnesses who spoke of the monuments remaining upon the ground, and the matters that have been discovered by excavation, you have these maps in evidence, and they are all proper for you to consider in connection with the testimony of the witnesses. You must consider all the evidence, and the maps, and just find this one thing, where, on the ground, is the true line between these two parties as they fixed it; and let your yerdict be for the plaintiffs, if they have satisfied you with the truth of their case, otherwise let your verdict be for the defendant.] [5]

[“ There is no question of law in the case which we can decide that would determine it; it is apure question of fact for the jury. Remember this, you are not the owners of any part of this land, you cannot give these plaintiffs any land, not an inch, which does not belong to them. You cannot give this defendant any land, not an inch, which does not belong to him. The facts are what you are to consider. You are not responsible for any of the results which may follow, you take the case just as you find it, consider nothing but the evidence in the case, and be guided by that alone. By your verdict, find the true line between these parties and you will have done your duty. ”] [7]

Verdict and judgment for plaintiffs.

*The assignments of error*specified, 1-3, the rulings on the evidencej quoting the bills of exceptions; 4-7, the portions of the charge included within brackets, quoting them.

*T. H Purdy*and *Lewis Dewart,*for plaintiff in error.

The offers of evidence objected to in the first and second assignments of error, were not to rebut anything the defendants had put in evidence, but to introduce new testimony to destroy the line established by consent of the parties and by the statute of limitations, and to substi*315tute a conjectural line for a lawful one. By the admission of the testimony, the whole question, not of where the line exactly was, but of where an imaginary line might have been or should have been, was opened up, and the mind of the jury was diverted from the real issue in the case.

Oct. 1, 1888.

Dr. Haupt was an incompetent witness, under the Act of 1869, and 1887. Kimball *v.*Kimball, 3 Rawle, 469; Buchanan *v.*Buchanan, 46 Pa. 189; Crouse *v.*Staley, 3 W. N. C. 84.

The court below erred in submitting the drafts and maps of the plaintiff to the jury without instructions.

Sebastian and his heirs having stood by and seen costly buildings erected by the defendant without objection, they cannot now compel him to tear down his brick buildings for the distance of 122 feet to give place to an uncertain, shifting and imaginary line. Carr *v.*Wallace, 7 Watts, 394; Marsh *v.*Weckerly, 13 Pa. 252; Bell *v.*R. R., 25 Pa. 171; Willis *v.*Swartz, 28 Pa. 418; McCombs *v.*Rowan, 59 Pa. 415.

S'. *P.*Wolverton, for defendant in error.

The questions asked the surveyors were among the most usual asked every surveyor in any controversy involving the location of disputed lines. The question turned finally on the location of an old division fence and not the lines by the town plot, and this was clearly stated by the court below.

If the plaintiff in error desired to raise the question of Dr. Haupt’s competency to testify to matters which occurred in the lifetime of his father, objection should have been made to such testimony. The objection, as made, was only to his competency as a witness for any purpose.

The drafts in evidence represented surveys made upon the ground, and were properly admitted in evidence.

Per Curiam,

This case was so fairly submitted to the jury by the learned judge of the court below that we cannot understand why exception has been taken to his charge. The jury may have made a mistake; but, if any such was made by the court, it has not been pointed out to us.

Nor do the exceptions to the rulings on admissions of evidence strike us as having any solid foundation. When a witness answers, as Brown did, “ I couldn’t tell,” it is of no consequence whether that question were properly or improperly allowed, for the answer harms no one. Clapp’s evidence was clearly admissible, whether used in chief or as rebutting. Lots 24 and 25 are embraced in the deed of partition, and if their location could not be proved by a competent artist, it is hard to say what the plaintiff could be permitted to prove. As to the competency of Dr. F. L. Haupt, there can be no doubt, and as there was no exception to his evidence, we have nothing before us on which to pass.

The judgment is affirmed.