Ziegler v. Hoffman.

Also the use, privilege and liberty of, and passage in, along, over and through, the lane or road passing over and through the premises of the Cyrus S. Herr, as always had been used by the said Cyrus S. Herr, from the within described premises, to and from the public road, leading from Maytown to Bainbridge (without injury or damage to the said Cyrus S. Herr) for wagon, carriage, cart, vehicles, horses or cattle, as by him or them shall be necessary and convenient. Together with free ingress, egress and regress, to and over the same, for the said John Ziegler, his heirs and assigns, and his or their tenants and undertenants at all times, and seasons-forever." This land was the greater portion of the 100-acre farm, and the deed for it was only recorded in the Recorder's Office on April 13, 1889, in Record Book G, Vol. 13, at page 291.

John Ziegler died intestate on November 17, 1894, leaving to survive him a widow, Barbara Ziegler, and two sons, Amos Ziegler and Jacob H. Ziegler, as his heirs at law. Barbara Ziegler, by her release, dated November 4, 1895, and recorded in the Recorder's Office in Record Book C, Vol. 15, at page 91, released unto Amos Ziegler and Jacob H. Ziegler all her dower right in the said land, and Amos Ziegler and Alice Ziegler, his wife, by deed dated November 13, 1895, and recorded in the Recorder's Office in Record Book R, Vol. 16, page 294, conveyed his undivided half interest in the said farm unto Jacob H. Ziegler, his heirs and assigns.

On April 2, 1888, Cyrus S. Herr and Emma H., his wife, by deed recorded in the Recorder's Office on April 3, 1888, in Record Book Z, Vol. 12, at page 329, conveyed unto Benjamin H. Nissly the first mentioned tract of 70 acres and 11.6 perches. The land thus conveyed is described in the deed as follows: "All that certain messuage or tenement and tract of land situated in the Township of East Donegal, County of Lancaster and State of Pennsylvania, bounded and described as follows, to wit: Beginning at a point in a public road running from Maytown to Bainbridge, South thirty-two degrees West, eighty-nine perches (S. 32, W. 89 P.) to a stone; thence South, sixty-six degrees East, one hundred and nine and one-tenth perches (S. 66, E. 109 1-10 P.) to a stone; thence North thirty-two degrees East, one hundred and ten and two-tenth perches (N. 32 E. 110 2-10 P.) to a stone; thence South, fifty-seven degrees East, twenty-nine perches (S. 57, E. 29 P.) to a stone; thence South sixty degrees East, eighty perches South (S. 60, E. 80 P. S.) to the place of beginning. Bounded on the Southeast by land of Samuel Hoffman; on the Southwest by land of John Ziegler; on the Northwest by land of Jacob Engle, and on the Northeast by land of Mrs. Reich, and containing seventy Acres and eleven and sixtenths perches (70 A. 11 6-10 P.).

Reserving the right and privileges for himself, his tenant and workman and all interested of way to pass through the said premises along lane and through and through gates, etc., from the Maytown and Bainbridge road to the farm adjoining on the West and now occupied by Jacob Ziegler, at all times as has been formerly used and established

Ziegler v. Hoffman.

by former owners, their heirs and assigns, from closing gates, etc., and do no damage."

Benjamin H. Nissly and wife, on September 9, 1916, made a deed of voluntary assignment unto Norman F. Arntz; and Norman F. Arntz, as assignee for the benefit of creditors of Benjamin H. Nissly, in pursuance of an order of the Court of Common Pleas of Lancaster County, by deed dated March 31, 1917, and recorded on April 4, 1917, in the Recorder's Office in Record Book C, Vol. 23, at page 282, conveyed this land unto Abraham L. Hoffman, the defendant.

It will be observed that in both deeds the right was reserved to a lane or road passing over and through the premises of the defendant, to and from the public road leading from Maytown to Bainbridge, for wagon, carriage, cart, vehicles, horses or cattle, together with free ingress, egress and regress to and over the same for the said John Ziegler, his heirs and assigns, and his or their tenants and under-tenants, at all times and seasons forever. There is no dispute between the parties as to this right; but it seems that, during the summer of 1919, two bars were put up at the far end of the lane, across the right-of-way, and also at the other end of the same field. These bars were not fast; they were just laid across the lane, and they remained there two months and a half, for the protection of the fields, and for the purpose of keeping the cattle in pasture. They were put up again at the same places in the summer of 1920. This was done by the defendant's tenant, and at least with his knowledge, if not by his direction. The bars were on a line with the line fence between the two farms, and did not interfere materially with the driveway.

The only point involved is, whether or not the defendant or his tenant could place these bars as he did across the right-of-way.

CONCLUSIONS OF LAW. It will be observed that the deed under which the plaintiff claims was not recorded until almost seven years after it was given and more than a year after the defendant's vendor had received his title and placed it upon the record. There is a variation in the words of the reservations as contained in these two deeds, and therefore, if the rights of the parties are materially affected by this difference, the provisions as contained in the second deed must prevail. The provision of the reservation of that deed is: "Reserving the right and privileges for himself, his tenant and workman and all interested of way to pass through the said premises along lane and through and through gates . . at all times as has been formerly used and established by former owners, their heirs and assigns, from closing gates, etc., and do no damage." In the first deed, there is a provision that the lane is to be used "without injury or damage to the said Cyrus S. Herr."

By the Act of March 18, 1775, 1 Sm. L. 422, which was in force when the above conveyances were made, it was provided as follows: Whereas, by the different and secret ways of conveying lands, tenements and hereditaments, such as are ill-disposed, have it in their power to commit frauds, by means whereof divers persons may be injured in their purchases and mortgages by prior and secret conveyances, and fraudulent incumbrances: For remedy whereof, Be it Enacted

Ziegler v. Hoffman.

That all deeds and conveyances, which from and after the publication hereof, shall be made and executed within this province, of or concerning any lands, tenements or hereditaments, in this province, or whereby the same may be any way affected in law or equity, shall be acknowledged by one of the grantors or bargainors, or proved by one or more of the subscribing witnesses to such deed, before one of the Judges of the Supreme Court, or before one of the Justices of the Court of Common Pleas of the county where the lands conveyed lie, and shall be recorded in the office for recording of deeds in the county where such lands or hereditaments are lying and being, within six months after the execution of such deeds or conveyances; and that every such deed and conveyance that shall at any time after the publication hereof be made and executed, and which shall not be proved and recorded as aforesaid, shall be adjudged fraudulent, and void against any subsequent purchaser or mortgagee for valuable consideration, unless such deed or conveyance be recorded as aforesaid, before the proving and recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim." In accordance with this Act, it was decided, in Poth v. Anstatt, 4 W. & S. 307, that "the recording of a conveyance within six months from its date is essential to the validity of the title granted by it against a subsequent bona fide purchaser for a valuable consideration"; and in The Pennsylvania Salt Mfg. Co. v. Neel, 54 Pa. 9, that a subsequent purchaser to be first in right against a prior purchaser must be first on the record." See, also, Duff v. Patterson, 159 Pa. 312; Fries v. Null, 154 Pa. 573.

But, even if the defendant cannot maintain his position in this regard, I do not think the bill can be sustained. In Hartman v. Fick, 167 Pa. 18, it was held that, "where land is subject to a right-of-way, the owner of the land, for the protection of his fields, may erect a gate across the right-of-way, provided that he observes a reasonable regard for the convenience of the owner of the right-of-way"; and in Helwig v. Miller, 47 Sup. 171, that, "where land is subject to the easement of a private right-of-way in favor of an adjoining owner to enable the latter to reach the public highway, the owner of such land may, for the protection of his stock and property, erect a proper swinging gate at the point where the right-ofway opened into the public road, in substitution of a pair of bars, which had been at one time used, but had been removed or disappeared, and he may by injunction compel the owner of the easement to properly close the gate after using it." In Connery v. Brooke, 73 Pa. 80, Williams, J., delivering the opinion of the Court, said: "We are of the opinion that the Court erred in holding that by 'the free use, right and privilege of a passageway' we can only understand a way unimpeded by any means whatever, and that, as a necessary consequence, a gate hung across such way at its intersection with the turnpike is a wrongful obstruction, for which an action will lie." See, also, Kohler v. Smith, 3 Sup. 176. It, therefore, follows that the acts of the defendant and his tenants in placing loose bars at certain times across the plaintiff's right-of-way was not an unreasonable obstruction of the right-of-way, or one which ought to be corrected by injunction.

Ziegler v. Hoffman.

We are accordingly of the opinion that the preliminary injunction granted in this case should be dissolved, and the bill dismissed at the costs of the plaintiff.

June 29, 1921. Opinion by LANDIS, P. J.

On March 26, 1921, this Court, after a hearing duly had, found the facts, and also at some length set out its conclusions as to the law of the case. In accordance therewith, it ordered that the following decree should be entered, viz.: "That the bill of complaint filed by the plaintiff in this case is hereby ordered to be dismissed at the plaintiff's costs, and the preliminary injunction is dissolved."

The plaintiff has filed fourteen exceptions to the findings, and these have come before us on the regular Argument List as upon a rule for a new trial. We have carefully considered them and have concluded that they are without merit. The decree as above entered is, therefore, confirmed.

Decree confirmed.

Court of Common Pleas of Lancaster County

Reinfried v. Heiss.

Trespass-Practice Minority of plaintiff—Affidavit of defense-Practice Act of May 14, 1915, P. L. 483, Secs. 3, 13 and 20.

In an action of trespass the minority of the plaintiff cannot be taken advantage of by the defendant on a trial upon the merits of the case, but should be raised by affidavit of defense under the Practice Act of 1915 as it formerly should have been raised by a plea in abatement.

Rule for judgment for defendant n. o. v.

No. 27.

John A. Nauman, for rule.

F. Lyman Windolph, contra.

July 2, 1921. Opinion by HASSLER, J.

October Term, 1920,

This is an action of trespass to recover damages for injuries sustained by reason of the defendant's negligence. At the trial, on April 26, 1921, it appeared that the plaintiff was a minor, and would not be twenty-one years old until June 21, 1921. The defendant asked for binding instructions in his favor, for this reason, which request we refused. We are now asked to enter judgment for the defendant n. o. v.

We do not think the defendant is entitled to judgment n. o. v., as the minority of a plaintiff cannot be taken advantage of at a trial of a case on its merits. In Heft v. McGill, 3 Pa. 256, it is decided that in

Reinfried v. Heiss.

fancy is not a ground for non-suit, which is the same as affirming a request for binding instructions by a defendant, but must be pleaded in abatement. Any matter which should be raised by a plea in abatement is waived if the defendant pleads to the merits of the question involved. To the same effect are Machette v. Musgrave, 1 Phila. 186; Stimmel v. Miller, 8 C. C. 129; Union Type Foundry v. Kittanning Ins. Co., 138 Pa. 137; Stoever v. Gloninger, 6 S. & R. 63.

While pleas in abatement have been abolished by the Act of 14th of May, 1915, P. L. 487, provision is made in the Act for disposing of questions which formerly were raised by such pleas. Section 3 of the Act provides that pleas in abatement, etc., and all other pleas, are abolished, and that defences heretofore raised by them shall be made in the affidavit of defense. Section 20 provides that the defendant may in the affidavit of defense raise any question of law without answering the averments of fact contained in the statement of claim, and the question of law so raised may be set down for hearing and disposal by the Court. If in the opinion of the Court the decision of such question of law disposes of the whole or any part of the claim, the Court may enter judgment or permit another affidavit of defense to be filed.

Whether a minor can recover damages for injuries in an action of trespass is a question of law. Formerly it must have been raised by a plea in abatement, but as such pleas are abolished, the question must be raised now in an affidavit of defense to be disposed of in actions of assumpsit before an affidavit, denying the matters of fact averred in the statement, is filed, and in actions of trespass before going to trial of the case on its merits.

In Wilson v. Adams Express Co., 72 Sup. 384, it has been decided that a defendant need not file an affidavit of defense in an action of trespass, under Section 13 of the Practice Act, because it is provided there that the averments of fact upon which the plaintiff relies to establish liability and the averments relating to damages claimed, or their amount, need not be answered or denied, but shall be deemed to be put in issue in all cases unless expressly admitted. It is not decided in that case that a question of law, such as was formerly raised by plea in abatement, should not be raised by an affidavit of defense, as provided in Section 20, to which we have already referred. That Section 20 refers to actions in trespass as well as actions in assumpsit is shown in Section 1 of the Act, which provides that the Act shall apply to actions of assumpsit and trespass. All of its provisions, therefore, apply to actions of trespass unless they are expressly excepted in the Act itself. Such exception is made in the 13th Section, as decided by the Superior Court in Wilson v. Adams Express Co., supra, only as to affidavits of defense denying the facts upon which plaintiff relies to recover and the averments as to damages in actions of trespass. We are satisfied that the minority of the plaintiff in this case could not be taken advantage of on a trial upon the merits of the case, but should have been raised in an affidavit raising a question of law, which takes the place of a plea in abatement. The rule for judgment n. o. v. is, therefore, discharged.