Berg v. Butler Savings & Trust Co.
Berg v. Butler Savings & Trust Co.
Opinion of the Court
Opinion by
This was a proceeding in equity to restrain the obstruction of an alleyway in which the plaintiffs averred an easement, and to recover damages for alleged injuries to their property from the construction of a building upon the adjoining land of the defendant.
The plaintiffs’ property is situated in the borough of Butler at the southwest corner of High and Jefferson streets, containing forty feet in width on High street and extending eighty feet to the westward along Jefferson street. The defendant’s lot has the shape of an inverted “L,” the long arm of which bounds the plaintiffs’ property on the south and the short arm on the west. This lot can best be described as follows: Beginning at a point on the west side of High street forty feet south of Jeffer.son street, thence extending westward along a line at right angles to High street eighty feet to a point, thence northward along a line at right angles to the last mentioned line, forty feet to the south side of Jefferson street, thence westward along the said Jefferson street twenty-five feet to a point, thence southward along a line at right angles to Jefferson street sixty feet to a point, thence eastward along a line at right angles to the last mentioned line 105 feet to High street, and thence northward along the west line of High street twenty feet to the place of beginning. The plaintiffs, claimed that a strip of the last described lot five feet in width, bounding their property on the west, constituted “a narrow alley or court,” running into Jefferson street, in which they had an easement.
The court below in its opinion states: “We do not know whether Thompson conveyed to the defendant’s predecessors in title the twenty-five feet between the Berg (plaintiffs) and the Pillow lot or not, or whether said deed antedated the deed to the predecessor in title of the plaintiffs’ land; But John Kopp was occupying the twenty-five feet of land when Thompson conveyed the land of the plaintiffs to their predecessor in title, Charles Duffy. If this land of defendant’s was conveyed by Thompson to Kopp before he ■ conveyed the plaintiffs’ land to Charles Duffy, and the conveyance called for the twenty-five feet, then the boundary of the Duffy land on the west by a narrow alley or court would not deprive Kopp of his title in this five-feet strip of land along the Duffy line. But we do not know how the land conveyed by Thompson to Kopp was described in the deed, but when in 1878 the sheriff sold it as the land of Kopp, the deed, as well as subsequent deeds, described it as being bounded on the east by the bank lot. The evidence does show, however, that John Kopp and his successors in title had used and occupied this narrow strip of land so as to obtain title thereto by adverse possession, ' except that during all the time since the erection of the present building upon the plaintiffs’ land, in about 1873, the water conductors on the building have overhung the alley eight or nine inches. . . . The title of the defendant in this case rests upon the statute of limitations, being held by the defendant under the possession of John Kopp. That possession, which includes what is called the alley west of the property of plaintiffs, dates back to a time anterior to the date of the inception of the title of John M. Thompson through whom plaintiffs claim title. It is pre
Forty of the specifications are faulty in failing to show that they raise matters excepted to and finally passed upon by the court below: New Cumberland Boro. v. Riverton Cons. Water Co., 232 Pa. 531; Chisholm v. Thompson, 233 Pa. 181. The remaining specification goes to the decree, and complains of the refusal of the injunction, the failure to assess damages, and the dismissal of the plaintiffs’ exceptions. This assignment offends against rule 26 to the effect that each error relied upon must ■be specified by itself and that no specification shall embrace more than one point, refer to more than one bill of exceptions, or raise more than one distinct question. While we will not undertake to treat each one of these defective specifications separately, in our investigations .and researches we have considered all the matters which they were intended to call to our attention, and we are
The assignments of error are all dismissed and the decree of the court below is affirmed at the cost of the appellant.
Reference
- Full Case Name
- Berg v. Butler Savings & Trust Company
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- Syllabus
- Equity — Findings of fact — Decree—Easements—Adverse possession. 1. In a proceeding in equity to restrain the obstruction of an alleyway in which plaintiffs claimed an easement and to recover damages for alleged injuries to their property, a decree dismissing the bill will not be reversed where there is support for the court’s findings and conclusions that the defendant and his predecessors in title had used and occupied the narrow strip in controversy so as to obtain title thereto by adverse possession, except that during part of the statutory time the water conductors on the plaintiffs’ building had overhung the alley eight or nine inches; that under the facts the use of the land as an easement by the plaintiffs was presumed to have been permissive; that the proposed construction would not interfere with the overhanging portions of plaintiffs’ building; and that since the defendant before excavating below the foundations of the plaintiffs' building had notified the latter to protect the same, which they had undertaken to do; and since no negligence had been proved against the defendant, the plaintiffs were not entitled to recover damages. Rules — Supreme Court — Specifications of error. 2. A specification of error which goes to the decree and complains of the refusal of an injunction, the failure to assess damages and the dismissal of the plaintiffs’ exceptions offends against Supreme Court rule 26, to the effect that each error relied upon must be specified by itself and that no specifications shall embrace more than one point, refer to more than one bill of exceptions or raise more than one distinct question.