Kyper v. Sheaffer

Citations

• 42 Pa. Super. 277
• 1910 Pa. Super. LEXIS 327

Syllabus

<p>Trespass — Right of way — Evidence.</p> <p>1. In an action of trespass for an alleged unauthorized use of a lane over plaintiff’s land a question asked a witness as to whether a prior owner left the land for the benefit of the owners of neighboring lands and the public, and an answer by the witness that that was what he understood, and that the lane was an evidence of it, is wholly incompetent as evidence.</p> <p>2. In such a case the defendants may establish their right to use the lane by showing that it had been used generally by the public without objection by the owner of the land.</p> <p>Evidence — Testimony in previous suit — Identity of subject matter— Identity of parties.</p> <p>3. Identity of subject matter in whole or in part and identity of the parties in interest must unite to render the testimony in one case admissible in another case.</p> <p>Trespass — Right of way — Evidence.</p> <p>4. On an issue in trespass to determine the right to use a lane over plaintiff's land, where a witness testifies that he had used the lane in question, the witness may be asked on cross-examination whether permission had not been obtained from the owner for passage on the lane.</p> <p>5. In such a case the wife of the former owner of the land may be permitted to testify to a conversation between her husband and the deceased predecessor in title of land owned by the defendant to the effect that her husband had given permission to such predecessor in title to use the lane. Such permission may also be shown by the predecessors in title of the plaintiff.</p> <p>Easement — Right of way — Adverse use.</p> <p>6. A right to use a lane over the unenclosed woodland of another could only be acquired, apart from a conveyance, prior to the Act of April 25, 1850, P. L. 569, by a continuous uninterrupted and adverse user of the land for a period of twenty-one years. If the evidence fails to show a well marked or clearly defined road which was used during the whole of such period, no r