Opinion
December 1, 1932.
January 3, 1933.
Ejectment — Title not reaching back to sovereign — Possession of grantor in chain of title — Necessity of showing.
1. In an action of ejectment where the title asserted does not reach back to the sovereign of the soil, at least one of the grantors in the chain of title must be shown to have been in possession, at or near the time the deed was executed. [53]
Ejectment — Evidence — Pleadings — Statutory law — Act of May 8, 1901, P. L. 143.
2. Evidence, in trial of an action of ejectment, must, under section 2 of Act of May 8, 1901, P. L. 143, be limited to issues raised by the pleadings. [59]
Deeds — Construction — Grant of land bordering on flats — Express exception of flats — Boundary — Grant to "top of river bank" — Artificial dyke — Courses in deed.
3. An express exception is required in a grant of land bordering on river flats, or some unequivocal declaration or certain immemorial usage, to limit the title of the owner in such cases to the edge of the river. [55-6]
4. A grant of land to the "top of a river bank" which is washed by high tide passes title to the flat land though the bank referred to is an artificial dyke and the courses in the deed extend to the center of the top of the dyke. [56]
Real estate — Possession — Flat land.
5. Possession of firm or meadow land is possession of the flat land between high and low water mark bordering thereon. [55]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 304, Jan. T., 1932, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., March T., 1925, No. 13,783, on verdict for defendants, in case of Elizabeth M. Gibson et al. v. Agnes Hoffman et al., trustees for Agnes Hoffman and Benjamin R. Hoffman. Affirmed.
Action of ejectment. Before FINLETTER, P. J.
The opinion of the lower court was as follows by FINLETTER, P. J.:
This ejectment was brought by the Gibson heirs (plaintiffs) as a result of a petition of the Hoffman heirs (defendants), under the Act of April 16, 1903, P. L. 212, praying that the Gibsons be required to bring ejectment.
The Hoffmans alleged in their petition that they were the owners in possession of certain land, and that the Gibsons, not being in possession, nevertheless claimed to own the land, thus creating a cloud on the Hoffman title. The Hoffmans therefore invoked their right under the Act of 1903 to compel the Gibsons to bring their ejectment and establish if they could their claim to ownership.
The court made absolute a rule upon the Gibsons to bring ejectment. Accordingly the instant action was brought, the Gibsons being plaintiffs and the Hoffmans defendants.
After a trial the court directed a verdict for the defendants (Hoffmans).
Neither side traces its title to the Commonwealth. By stipulation the parties are relieved from the burden of proving title out of the Commonwealth. This still leaves them with the burden of showing a title from some grantor in possession, the rule being that where the title asserted does not reach back to the sovereign of the soil at least one of the grantors in the chain of title must be shown to have been in possession, at or near the time the deed was executed: 19 C. J. 1056, section 33. [All italics in this opinion are the court's.]
The land in dispute is three acres of "flat land" on the Schuylkill River, adjoining five acres of "firm" or "meadow" land. By "flat land" is meant land between high and low water mark.
The title of the Gibsons commences with a deed from David Gibson to his son Nathan Gibson, dated February 21, 1785. There is no recital in this deed of the source of the grantor's title, nor is there any evidence at all on the subject. Neither David Gibson nor Nathan Gibson, nor anyone in their line, was ever in possession of the land.
On the other hand, at the time when David Gibson executed the deed of 1785 to Nathan, conveying the "flat" land only, there was another outstanding deed dated September 4, 1770, from the sheriff to George Gray, which conveyed to Gray "five acres of meadow land and three acres of flat land." The "meadow land" is firm land above high tide. Gray's title to it is not disputed in the present controversy. It is now and always, since the deed of September 4, 1770, has been in the ownership and possession of Gray and his grantees the Hoffmans.
There cannot be any doubt that the three acres of "flat land" (which is the land involved in the present dispute) passed under the deed of 1770 to Gray. It is expressly included.
On his death in 1801 his estate was divided, and both the "firm" five acres and the "flat" three acres passed by proceedings in partition to his daughter Margaret Knowles. The description in the allotment to her was, "Five acres of marsh meadow bounded by the River Schuylkill." Under the decisions the boundary of the film land by the river carried with it the adjacent flat land: Wood's App., 63 Pa. 210; Jones v. Janney, 8 W. S. 436; Coovert v. O'Connor, 8 W. 470; Patterson v. Harlan, 124 Pa. 67.
Title stood in Margaret Knowles until 1852, when she, by deed dated September 6th in that year, conveyed to Sellers Hoffman, through whom by divers undisputed conveyances the defendants (Hoffman heirs) claim.
The description of the land in the Knowles-Hoffman deed of 1852 has given rise to dispute which centers on the meaning of the words "to the top of the Bank of the River Schuylkill." Is this a boundary by the river so as to carry with it the flat land or not?
We do not see that the discussion of this question adds anything to the title of the Gibsons. The Knowles-Hoffman deed either conveyed the Knowles title to the three acres to Hoffman, or it left it in Knowles. If the Hoffman heirs do not own it the Knowles heirs do, and the Gibson heirs do not.
It is suggested that the manner in which this ejectment was brought, that is, that it was a forced suit, differentiates it somewhat from the ordinary ejectment suit and affects the burden of proof which is ordinarily upon the plaintiff.
We know of no case in which this distinction has been made. But, in view of what will appear below, we will endeavor to decide this case without reference to the relative positions of the parties to the issue, and their effect upon the burden of proof.
It is a fact that the Hoffmans' right to compel the Gibsons to bring ejectment depends upon the Hoffmans' possession of the land, and this depends on the interpretation of the description in the Knowles-Hoffman deed. We decided this against the Gibsons, and forced the latter into the vulnerable position of plaintiff. An appeal taken from our preliminary decision was withdrawn. We wish nevertheless to avoid deciding the case upon the mere technicality of position and burden of proof if it is possible. Especially since counsel for the Gibsons says he withdrew his appeal because of an understanding that the case would be tried "in such a manner that the result would not depend on the burden of proof but would be determined by the question as to which had the better title."
If this issue is satisfactory to the parties we have no objection, and will determine the case by the standard agreed upon.
On this basis it is necessary to consider whether or not the Hoffmans were in possession of the three flat acres when their petition herein was filed. We were and are of opinion that they were in possession; and we will give our reasons for so thinking.
It must be kept in mind that their possession of the adjacent five acres of firm land from the beginning has not been disputed. It is also a fact that the Gibsons have never been in possession of either firm or flat land. The deed of 1785 carried only the flat land. Was then the flat land included in the Knowles-Hoffman deed? "Possession of the firm land was possession of the flat land," said Mr. Justice CLARK in Palmer v. Farrell, 129 Pa. at page 169, because that is the only way in which, from the nature of such flat land, possession may be had.
"The character of this kind of property is such that land bordering on the flats, and the flats, naturally go together. Their most beneficial enjoyment is derived from their connection; and it is inconceivable that any man, in his sober senses, having, or supposing he had, a title to both, would intentionally separate them, and convey the meadow to one of his children and the flats in front of it to another. For this reason it is that an express exception is required in the grant, or some unequivocal declaration or certain immemorial usage, to limit the title of the owner in such cases to the edge of the river:" Jones v. Janney, 8 W. S. 436; Palmer v. Farrell, 129 Pa. 169.
The facts bearing upon the questions are: (1) The boundary is by the "top of Bank of the River Schuylkill;" (2) this is an artificial bank; it is however in fact the only bank of the river; (3) it is washed by high tide; (4) the deed to Hoffman contains a recital, "which said lot was inter alia at the partition and allotted to Margaret Knowles;" (5) both firm and flat land were allotted to Margaret Knowles; (6) the courses given in the deed to Hoffman extend to the center of the top of the dyke.
It is conceded that the Bank referred to in the description was an artificial dyke. On the other hand the uncontradicted testimony was that it was the only river bank that existed. In our opinion it makes no difference whether the river bank was artificial or natural, so long as it was the river bank. The reasons for the rule (see Palmer v. Farrell, supra) are the same whether the river bank is artificial or natural, so long as it is the river bank, with firm land on one side and the stream on the other. The description in the instant case is radically different from that in the Palmer Case. In the instant case the line expressly follows the "top of the river bank." In the Palmer Case, after reaching "a stake on the river bank," the boundary line leaves the bank and jumps to another stake also on the river bank. In other words it draws a straight line from stake to stake, and the line bears the same relation to the bank that the arc of a circle bears to the circle.
The uncontradicted testimony, in great volume, is that the tidal water washed the river bank referred to. We do not regard the silting in, during the last ten years, carried by the construction of Passyunk Avenue, and before that since 1852, as affecting the deed made in 1852.
The facts that make for an inclusion of the flat lands with the firm five acres are, (1) the boundary by what was in fact the river bank; (2) the recital in the partition allotment; (3) the failure to exclude the flat lands, i. e., the absence of an "express exception" or some "unequivocal declaration" excluding them (Palmer v. Farrell, supra). In our opinion the flat lands passed to the Hoffmans by the Knowles-Hoffman deed, and were therefore in their possession by virtue of their possession of the firm land.
Coming back to the ejectment suit, and accepting the Gibsons' statement of the question to be decided, Which of the claimants has the better title? The fact is that neither has a good paper title. Hoffmans' is better than Gibsons'; because the deed of 1770 was followed by possession, existing today, and shown by the evidence to have existed for the last fifty or more years; because the flat land in fact adjoined the firm land, and therefore passed (without express description) with the firm land; because it was expressly conveyed with the firm land by the deed of 1770; because it passed with the firm land by the description in the partition allotment; because it was not expressly excluded from the Knowles deed (Palmer v. Farrell). On the other hand the Gibson title starts nowhere; has never been reduced to possession; could not physically be reduced to possession; conveys no firm land to which its title might attach.
It is therefore plain: (1) That, judged by the ordinary standard, to wit, that the plaintiff in ejectment must show title, the plaintiff has failed; and (2) judged by the standard the plaintiffs say was agreed upon, that is, that judgment should be given to the party showing the better title, the plaintiffs also fail, for the reasons we have given.
Looking at the alleged Gibson title in the most favorable way, freeing them from the burden of making out their own title, making the test as between them and the Hoffmans depend on which has the better title, it seems to us that the Gibson title is so hopelessly bad as to be impossible to sustain. It depends wholly upon an old deed that somebody found among the Gibson papers a few years ago and that has lain unacted upon for over 100 years. It has no connection with any past title and doesn't claim to have. There is no recital in it, yoking it either to the Commonwealth or to any grantor in possession at any time.
Compared to such a title Hoffmans' title is infinitely better, by the fundamental fact of possession. This fact alone, being adverse and for over fifty years, is sufficient. It was of land that could be "possessed," firm land as compared to Gibsons' deed for flat land covered by the tides and impossible of possession. And finally the Hoffman land has been in their possession for seventy years as a matter of fact, and since 1770 as a matter of presumption.
An attempt was made to show that the Hoffmans failed to show the location of their property, or that it lay behind the flat land in dispute. The fact is that throughout the case the possession by the Hoffmans and the location of the five acres of firm land has not been disputed; and the identity of the three acres claimed by the Gibsons with that claimed by the Hoffmans has been expressly admitted in the written agreement of facts.
In the Gibson answer to the Hoffman petition, Gibsons say: "It is denied that Hoffmans acquired title to the tract described in the Gray deed, i. e., the three acres. It is averred as the contrary that title and possession of the same is in the Gibsons as set forth above" (i. e., in the 1785 Gibson deed).
In agreement of fact No. 6 it is "admitted that the five acres inside the bank is owned by the petitioners" (Hoffmans); and (section 3 of admission No. 6) "The land covered by this patent included the five acres inside the bank owned by the petitioners (Hoffmans), the three acres now in dispute, etc." Also that the three acres were the land included in the Gibson deed.
In the Hoffman statement of title, and in their petition for a rule the land, both five and three acres, is described. And in the Gibson answers there is no suggestion of a lack of identification of the position of the three-acre lot. Title only is disputed.
The only basis for this argument is the testimony of an expert that a plan he drew from the description in the deeds does not show the connection of the three acres with the firm land. The witness frankly admitted that his plan was only "the best he could do." It is not strange that it is defective since he admits that one of his boundaries is "Upper Two Creek," which has no existence now, and is, on his plan "purely imaginary," and that the only effort he made "to make the surveys correspond with the landmarks" was to use the same "beginning point" for both sets of deeds (which by the way it is plain lie did not do). This is "the point at the head of Upper Two Creek." He said he did not know where the head of the creek was. "I assumed where it was and platted both descriptions from it." He also admitted that the starting points of the two deeds he compared were different, the 1770 deed beginning at a "stake in the head of Upper Two Creek," and the deed of 1852 beginning at "a stake in the middle of Hay Road." Finally he said that "two of the side boundaries" in his plan were "imaginary." Of course a plan drawn upon such data is worthless for any purpose.
On the other hand the recitals in the lines of deeds of both parties connect the land in dispute with the descriptions in the original deeds of both parties.
Finally it is too late for the plaintiffs to raise this question. The pleadings are silent upon it; and it has been held that, "under section 2 of the Act of May 8, 1901, P. L. 143, the evidence, in a trial of an action of ejectment, must be limited to the issues raised by the pleadings. The theory of the plaintiffs, upon which their action is based, is that their land, as described in their deed, is the land occupied by the defendants
Judgment on directed verdict for defendants.
Plaintiffs appealed. Error assigned, inter alia, was judgment, quoting record.
Charles J. Biddle, of Drinker, Biddle and Reath, with him Philip Wallis, for appellants.
Robert T. McCracken, with him Lawrence M. C. Smith and George V. Strong, for appellees.
Argued December 1, 1932.
The judgment is affirmed on the opinion of the learned trial judge of the court below.