Whitney v. Welshans

Citations

• 50 Pa. Super. 422
• 1912 Pa. Super. LEXIS 68

Syllabus

<p>Adverse possession — Plotted street — Fence and house in street — Evidence — Case for jury — Easement.</p> <p>1. In an action of trespass brought in 1909, to recover damages for the maintenance of a house in a dedicated, but unopened street appurtenant to plaintiff’s land, it appeared that the land in dispute was part of a larger tract that had been plotted into lots and streets. A deed made in 1872 to a predecessor in title of the defendant called for the center of the street in question as a boundary; but it did not appear that the plot was recorded, or the streets opened or marked on the ground, and it did not positively appear that the defendant or those under whom he claimed was shown the plot. At one time the lot owned by the defendant was inclosed by a fence which on one side ran along the center of the street in question. This fence existed in 1879, but there was nothing to show that it existed in 1872 or at the date of the alleged dedication. In 1897, one of defendant’s predecessors in title erected a house within the limits of the plotted street. Held (1) that defendant’s title by adverse possession was for the jury; (2) that tiere was nothing in the ease to place upon the defendant the burden of proving that the fence was not in existence at the date of the alleged dedication, or in 1872.</p> <p>2. The right to an easement may be barred by possession and use adverse to and inconsistent with the right for twenty-one years.</p>