Little v. Greek

Citations

• 233 Pa. 534
• 82 A. 955
• 1912 Pa. LEXIS 865

Syllabus

<p>Mines and mining — Mining lease — Description—Latent ambiguity — ■ Disputed question of fact — Evidence—Competency of witnesses — Pleading —Notice—Bill of particulars — Measure of damages.</p> <p>1. While the construction of a . written instrument is the exclusive province of the court, the description of land conveyed, its limits and contents, are frequently mixed questions of law and fact, and where from the generality of the terms used in a deed or from uncertainty of description, a doubt is raised as to the boundaries or location or limits of land sold, evidence aliunde may be resorted to for the purpose of aiding a jury to determine what land was intended to be included in .the grant.</p> <p>2. In an action to recover damages for coal mined and removed from a portion of a leased tract which had been reserved for the protection of farm buildings, the burden is on plaintiffs to show that the coal was removed from that portion of the tract excepted from the grant, and testimony of a surveyor and others called to establish the line answering the description of the deed is competent where the facts are in dispute, and what “garden fence” was in the minds of the parties as constituting one of the boundaries is the real question in 'controversy.</p> <p>■ 3. Where in such a case the plaintiffs’ statement of claim was accompanied by a copy of the lease which contained a description of the coal reserved and in the bill of particulars filed by them under the rules of court the plaintiffs stated that they would confine the offer of evidence in their case in chief to establishing the facts averred in their statement of claim, this was notice that they would offer evidence to establish the location of the reserved coal; and evidence tending to show that the parties had come upon the ground and agreed upon the location of the disputed boundary line was relevant to this question.</p> <p>4. Under the circumstances of such a case it is not error for the court to allow the pla