The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-11-18


in Excess of the Maximum AL
lowed by Our Laws.
Two interesting opinions were rem
dered by Judge Edwards yesterday,
one discharsing the rule for a new
trial in the case of the La
Coe and Shiffer coal company
against w. NJ. Springer and the
Other declaring that a foreign building
and loan association is rot subject to
penalty under the usury laws of Penn
sylvania, or in other words if the state
in which the contract is made permits
higher rate of interest than does
Pennsylvania that rate can be collect
ed in this state.
In the Springer case the defendant
sought "a new trial, mainly on the
ground that the trial judge erred in
charging the jury that the possession
must be hostile to the true owner and
under Il claim Of right" When the
motion for a new trial was made
Judge Archibald virtually said that an
error had been made and that he on
one occasion had made a similar one
himself Judge Edwards, however,
says differently. The opinion reads as
follows:
Tho assignments of error iu this CuSe
relate to four principal points. 1t Is con-
tended that the court erred i'm instructing
the jury that adverse possession must ne
under "a claim of right aud not in subor-
dination to the title of another; that the
declarations of Hannah Decker while ON
the land and claiming to be in possession
Of 1t were not admissible: that the notice
served by the defendant on plaintiif :
lessee claiming to hold the land for the
heirs of Andrew Decker should have been
excluded. and that the purchase of an
outstanding title by the defendant was a
fact that should not have been considered
by the court nor the jury.
LAND IN DISPUTE.
The land in dispute consists of about
seventeen acres. It is a part of three
wdlrantee tracts. The plaintiff proved a
perfect legal title To these three tracts.
There was no dispute about this feature
of the case. The defendant Claimed title
to the land by continuous advcrs" pos
session for a period of more than twenty
one years.
|. I'm charging tn" jury as TO the nature
Of title by adverse possession we made
use Of the following language: "Thvre
nre essential elements necessary to con-
! Stitute an effective adverse possession:
| First, the possession must be adverse
or hostile, and under a claim of right;
second. it must he actual; third. it r'uSt
hc visible. open and notorious; fourth. 1t
mus DE exclusive fifth, it must be con-
t!nuous and for the period of twentN-"ne
years. These are important elements #
"a title by adverse possession. Before Il
man can successfully establish such u
| title each element must be proven, each
element must exist. If he fails in any one
of them then his title falls and his COnten-
ton is defeated. l will explain to YOU
these elements "A little more extensively.
When we say that the possession mus.
he hostile we mean that it must hc ad-
verse and hostile tc the title OF the true
owner and under a claim of right. There
must he no recognition of title in another.
Evidence of such recognition tends to
show the character of the posscs ssion.'
Objection is made to the use of the
ph -asc "Cndcr Il claim of right rhes"
words must be considered in the light nf
those which Immediately follow. The
| context must be referred to. A person
| holding possession of land adversely must
| not claim under another. lie must not
/ recognizes the title OF another. He must
| hold the land in his own right ana not in
| subordinatiOn TO the title of anybody else.
| The claimant must in the language of
I.
| and present Il hostile front to all adverse
| pretensions"; and as Mr.. Justice CLARK
| says COlewine W. MessmCrC. l2S Pa. 400,
| adverse possession of land may he said
| TO be founded in trespass, but it must be
Il trespass constantly continued by acts
! on the premises. 1t must challenge the
right to all the world
WORDS COMPLAINED oF.
The words complained of do not mean
| that the adverse holder of land
| must enter under a color OF title.
! This is the doctrine in some states,
| but not in Pennsylvania. Yet IN
| Pennsylvania it is not questioned
| that person claiming title by adverse
possession must claim in his own right
| and not in the right of another. The prin-
| Ciple Is we'll stated in the case of Rung
vs.. ShOneberger. Watts, %, Mr. Justice
| Rogers says: "AdvtIse possession is not
to be made out by inference. but by ct,ar
| and positive proof; and every preSump-
| tlon is i'm favor of posse sSiun i'm subordi-
! nation to the title of the truc ownc";
jackson W.. Sharp. . Johns 1G5. If a PEI
son enters into possession of land. IN 4
| holds il. without more the presumption
| is, he claims title.
| \ possession of more than twcnty-onc
years, under such circumstances, would
| he adverse; and as such. would give title
| But II, Wnen he enters or afterwards,
he does not claim title himself but ac.
| lnowledges the title of another, his pos.
| session must be taken as an entry on
| holding in SubOrdination to the tit,c OF
the persons whose rights he acknowi
edges. And this Qualification of the rule
| is necessary, to protect the rights which
| might otherwise be lost hy the fraud ant
artificc Of the person in the actual pos
| Sc sSion.
A dpClara tiOn that the right WAS in an
other, might be intended, and would IRE
quently have the effect Of putting tn,
legal owner off his guard. Such dcCla
ration is Inconsistent with an adverse o
hostile holding. TO constitute an adverse
possession in New York IT is not ncces