The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-08-20

Appended Is the discussion by Judge
John +. Kelly of the ejectment case
of +. p. Carter and others against
the Ridge Turnpike company, in which
Il is held that the defendants did not
gain title by prescription. because
their original entry was a trespass and
the continued possession, continued
trespass. 1t is Il question never before
| passed upon in this state.
This is an action in cicctmcnt brought TO re.
| cover possession oi strip Of land about hity
| feet in width, ami comprising about 500 acres
| situated in the First ward of the city Of Scrin.
| ton The plaintiffs have shown title and posses
sion Of the land in question in their ancestor,
! Pulaski Carter, from whom they acquired title
| by inheritance upon his death in lsSi. The de.
fendint, in 1872 or 1873, entered upon this strip
| OF land in question. which IL part OF a tract Of
| about twenty-five acres in the possession Of
Pulaski Carter at that time, laid out and built its
| turnpike upon It, and has been in the continuous
| and uninterrupted possession Of 1t ever since,
using it continuously as a part of their road.
There Is no evidence in the case to show under
| which II took possession, whether by purchase,
| condemnation proceedings or otherwise. We
have only the bare fact that it did take posses.
sion at that time and held possession for oycr
| twenty one years.
Tho plaintiffs contend that having shown title
and possession in Pulaski Carter at the time of
| the taking, and there being no evidence to show
| that the defendant ever received any grant from
| him or ever paid entered security for the
| land that they are entitled TO recover; while
| the defendants contend that, having under the
| undisputcd evidence taken possession Of the
| lands and continued unintcrruptcdly in such pos
session from 1872 or 1873 to the time the suit
was brought. for a period Of over twCuty.onC
| years, it acquired title by prescription. that
| their possession for that period Of time pre-
| rimcd TO have been in pursuance Of "A full arC
unqualified grant, and that it is incumbent OF
the plaintiffs TO rcbY such presumption, and
| having failed to do 50. they cannot recover,
Ordinarily the use Of road over the land o
| another. without permission or objection, is ad
| verse, and, il enjoyed unintcrrupedly for twenty
one years, gives right Of way; Nlch cniolmcn
without evidence as to how il began is prcsumcC
to he in pursuance Of grant, and the hurdci
Of showing the contrary lies on the owner Of tn
land. Garrett vS. Jackson, n Pa. 3@l; Picrc'
W. Cloud, ~ Pa. lO,; Bennett vs.. Biddlc, ~
Pa 3g6; Hudson vs. Watson, IL Sup. Ct. Rep
2G6
APPLIES BETWEEN INDIVIDUALS
This principle applies between individuals, an,
IL this was contest between the plaintiffs an
one who had enjoyed an uninterrupted right o
way over their lands without permission or oh
| lection for over twenty.onc years, they Ccrtan.
| could not recover But whether the prinCipl
applies as between land owner and corpora
ton invested with the power Of eminent do
main is not SO clear. and has never been specii
Cay decided in Pennsylvania ~ FAR as we hav
| been able TO learn; nor has our attention hcc'
called TO any decision holding the affirmative.
| II has been decided that any statutory pro
| Ceedinc to assess damages for property taken II
the exercise ~ eminent domain the statute q
limitation does not apply. Hannah VS.. Boro
| of West Chester. 63 Pa. AS: Mctlinton vs.. Ry
Co., ~ Pa. iOi; Seigcl va. Extension Co., -
Pa. Ash; Keller VS.. r, r. Co., ljl Pa. O.; Zah
vs. Ry Co., l6i Pa. &c. In Hannah VS.. tn
Borough, Sharawood, j., says: "ln regard how
ever, to any actual taking by other than rail
road companies il rather seems to me that unde
this constitutional provision rsccton 1, artCi
!, Amendments to Constitution. 1850 no till
! to the land or an easement over it is gone viii
out paymcn, " or security for the damages.
"An occupation or use must he regarded as
continuing trespass. for which cjectm,nt. tres
pass or case will lie unaffected by the har
the statutes az far az the right Is concerned
Nothing hut adverse possession or Us
for twcnty.onc years would bar the right
action itself"
Thompson, s j.. and Williams, j., concur
the reversal of the case, but deny that III
statute of limitations is bar in any case
,
, Is to he noted that in this case the right
adverse possession not involved. Agncw. J
says in McClinton Ns. r.. Co.: at is very cei
that the title to the possession of the land is M
barred by the limitation OF six years qdycr
possession, hut only by twenty.one years und,
the act of l7S5, and, consequently, the acto
Of ciect,ncnt TO recover a possession unlawiuli
taken is not barred by the act Of I7lS."
In the case of Zahn vs.. Ry CO., the court b
low. Stowe, =. j., specifically held that II
statute Of limitations limiting plaintiffs rigl
, | 10 bring the action within twcnty.onc years d
not apply In commenting upon this point
the case, Mr.. Justice Dean, in delivering u
opinion of the Supreme court, used the follow
ing language: "Thc learned Judge of the cou
: below thought that thc logic and the infcrcn,
' and the necessary result Of the opinion of IN
I | court in McClinton vs.. Ry. Co., &c Pa. iOi,
r | that railroad corporations can acquire no rigl
= | by adverse possession Of twcnty.one years. Viii
I not questioning the correctness Of this concuSiC
, when drawn from all that was said in that cas-
| nevertheless, AS precedent, we adont the re
soning of it only SO far as il vindcatcS Il
D point decided; and that was. in tho language
v Agncw, j., who rendered the opinion; Can
r railroad company without a grant, release
| legal appropriation enter upon any mans lal
nolcns volens, and then bar his re.cntry by a
verso possession Of six ycaHF The answer W
il could not; and following what was said in
e logical conclusion, the same answer would. pc
S haps, though not necessarily, be given whe
r the corporation set mp defense Of twcnty.ol
q yclH adverse possession.
CONSIDERED AS SETTLED.
SIN civil cases since, notably that of Keller ,
r. r. Co., ljl Pa. 81, opinion by the prc'c
= chief Justice, the cases among them McC1int,
vs. Ry Co, are very fully considered, and it
held that the general limitation act Of 1913 a
| plpS only common law actions: and rtht