Pelton v. Strycker. half degrees east twenty-eight perches to a stone; thence north twenty-six degrees west by land in possession of Stergeon, thirty and eight-tenths perches to a post on the shore of Lake Erie; thence by the same south fifty-two degrees west, fifty-two perches to place of beginning, containing ten acres and one hundred and twenty-five perches neat measure with the appurtenances." The title to this land passed out of Conrad Zinn by various conveyances and became vested in Orange Godfrey by deed from J. Avery Tracy, dated Feb. 21, 1874. In these conveyances the land is described as follows, viz: "All that certain piece or parcel of land, situate in Girard Township, Erie County, Pennsylvania, being part of Tract No. two hundred and ninety-four (294), bounded and described as follows, to-wit: Beginning at the northwest corner at a post on the bank of Lake Erie; thence south twenty-six (26) degrees east, fortythree and eight-tenths perches to a post; thence north twenty-six degrees east, thirty and eight-tenths perches to a large sugar tree; thence north fifty and one-half degrees east twenty-eight perches to a stone; thence north twenty-six degrees west thirty and eighttenths perches to a post on the bank of Lake Erie; thence along said bank south fifty-two degrees west fifty-two perches to the place of beginning, containing ten acres and twenty-five perches of land, more or less." Practically the only difference in the description of the land conveyed to Conrad Zinn and in the deeds conveying the title out of him is, in the former the land is located on the shore of Lake Erie and in the latter on the bank of Lake Erie. In none of the said deeds is there any reservation of the sand beach in question. It would, therefore, seem that a reasonable construction of the description in the deeds conveying the lands in question to the "shore" or "bank" of Lake Erie is that the grantee takes title to low-water mark of the lake, unless otherwise limited in the grant: 4 Am. & Eng. Ency. (2nd ed.), 835; Canal Commissioners v. People, 5 Wendell (N. Y.) 447; Champlain, etc., R. R. Co. v. Valentine, 19 Barber, 491; Kelse v. Barton et al., No. 48, May T., 1907, C. P. Erie County; Gould on Water Courses, § 42. The general rule seems to be that the owner of land extending to the bank of a non-navigable river will own to the middle of the river, but where the land is described as extending to the bank of the stream, the grantee takes title to low-water mark: Halsey v. McCormick, 13 N. Y. 296; Hatch v. Dwight, 17 Mass. 299; Rockwell v. Baldwin, 53 Ill. 19; Wood v. Appal, 63 Pa. 210; Grant v. White, 63 Pa. 271. In McCullough v. Wainwright, 14 Pa. 171, it is said by Coulter, Pelton v. Strycker. J., that the bank of a stream is the continuous margin where vegetation ceases and the shore is the pebbly, sandy or rocky space between that and low-water mark. However, it appears that the law of boundary as applied to rivers is inapplicable to the lakes and other large, natural collections of fresh water in this country: Angel on Watercourses, § 42. In navigable streams the title runs to the ordinary low-water line, and unnavigable streams to the middle of the stream: Wood v. Appel, 63 Pa. 210. Upon due consideration, we are of the opinion that Orange Godfrey held title to the land in question to low-water mark on Lake Erie and had a right to convey it to the plaintiff. It appears from the evidence that at the time Godfrey conveyed to the plaintiff, and for many years prior thereto, he was in possession of the land described in the first paragraph of plaintiff's bill, including the said beach, and that the plaintiff went into the immediate possession of said land in pursuance of the conveyance to her, and has continued in possession thereof since that time and is now in possession of the same. That the defendant has entered upon said land and taken sand and gravel therefrom against the protest of the plaintiff without any right of possession or title or claim of title to the same. It would. therefore. seem that he is an intruder or trespasser thereon, and the plaintiff has a right of action against him for the tresnasses committed by him on the land in question: Stambaugh v. Hollanbaugh, 10 S. & R. 357; Townsend v. Kerns et al., 2 Watts, 180; Greber v. Kleckner, 2 Pa. 289; Bigler v. Antes, 21 Pa. 288; Jackson v. Gunton, 26 Pa. Superior Ct. 203. The defendant has from time to time committed trespass on the land in question by removing sand and gravel therefrom and threatens to continue said trespasses. It seems to be well settled in such case that the plaintiff has a remedy in equity and is entitled to an injunction to restrain the defendant from further trespassing on her property: Fuller v. Fisk, 43 Pa. Superior Ct. 489; Stewart v. Folt's Appeal, 56 Pa. 413; Walters v. McElroy, 151 Pa. 549; Griffiths v. Monongahela R. R. Co., 20 Dist. R. 534. We are. therefore, of the opinion that the preliminary injunction heretofore granted, restraining the defendant from trespassing on the property of the plaintiff described in the bill, be made permanent, and the defendant ordered to pay costs. Let a decree be drawn accordingly. And now, July 15, 1918, the prothonotary is directed to enter a decree nisi in accordance with the foregoing opinion, the same to become absolute unless exceptions are filed sec. reg. NELSON V. COMSTOCK. Judgments-Notes given as collateral security for lease-no guarantee or contemporaneous agreement. A judgment entered upon notes given as collateral security for the rental of an automobile under a written lease will not be opened in the absence of a guarantee as to quality in the lease or a contemporaneous parol agreement varying the terms of the agreement, even though the automobile is not in a condition to be operated. Rule to open judgment. C. P. Erie County, No. 413, February Term, 1918. Brooks, English & Quinn for plaintiff. ROSSITER, P. J.-It appears by the petition that on or about August 21st, 1917, the defendant leased from the plaintiff a certain five passenger Maxwell automobile, for which as "collateral security" defendant gave notes upon which this action is based; that he paid sixty-five dollars in cash on the lease; that the plaintiff so misrepresented the condition of the automobile that when the defendant attempted to operate it, it broke down, and he took it to the garage of the plaintiff; and that defendant has never had possession of the automobile since because of the plaintiff's default. To this petition there was no response in the form of a reply, but the parties proceeded to take testimony. It appears by that testimony that an agreement was entered into on the 28th day of July, 1917, between the parties, by which the defendant in this case leased from the plaintiff an automobile for the term of four months for the sum of two hundred seventy-five ($275) dollars, and agreed to pay as rental sixty-five ($65) dollars in hand and to give four notes for the balance of the rental-three for thirty ($30) dollars each, and one for one hundred twenty ($120) dollars. These notes were entered up and execution issued on some of them. In our opinion, neither the petition nor the evidence as taken warrant the Court in opening this judgment. The rule as we understand it, is that when an agreement in writing is entered into between the parties, it is presumed to be the whole agreement; unless there is some contemporaneous oral agreement supplementing it, alleged and proved, which varies its terms. The pleadings in this case do not allege, nor the testimony sustain any such ora arrangement as varying the terms of the written lease, and by the terms thereof no special quality in the automobile is guarantee and therefore the rule granted October 14th, 1918. to show cause why the judgment should not be opened and the defendant let into a defense is discharged. BLAKESLEE V. GUCKENBIEHL. Judgments-Mistake in Christian name-Notice to terre tenants. Plaintiff recovered a judgment against "Marie" Guckenbiehl, who inherited real estate as "Mary Ann" Guckenbiehl, but conveyed it to "Marian" Guckenbiehl. Held, that purchasers were actual terre tenants and judgment would not be opened after inquisition. A judgment will not be opened after inquisition to permit the defendants to set up a defense which should have been raised by an affidavit of defence to the scire facias sur judgment. Rule to open judgment. C. P. Erie County, No. 124 November Term, 1917. Chas. F. Haughney for Plaintiff. J. Reed Craig for Terre Tenants. ROSSITER, P. J., April 7, 1919-The facts as agreed upon are as follows: The plaintiff obtained a judgment before an Alderman against "Marie" Guckenbiehl, which transcript was later on January 9th, 1913, entered of record in the Court of Common Pleas of Erie County; that one Jacob Guckenbiehl died intestate January 6th, 1913, leaving surviving him as heirs, among others, "Mary Ann" Guckenbiehl, who it was admitted by counsel at the argument, is the same person against whom the judgment was obtained before the Alderman as "Marie" Guckenbiehl; that on June 9th, 1917, the defendants William Wunch and Louisa Wunch purchased land de Blakeslee v. Guckenbiehl. scribed in the petition to open judgment by deed of general warranty, from the heirs of the said Jacob Guckenbiehl, deceased, or their assigns; among the grantors was one "Marian" Guckenbiehl, who it is admitted, is the same person against whom the judgment was obtained before the Alderman, which deed was duly delivered and recorded; that on October 15th, 1917, a scire facias was issued upon the judgment entered January 9th, 1913, against "Marie" Guckenbiehl, and that defendants William Wunch and Louisa Wunch who were named as terre tenants therein, were served personally, but that a return of nihil as to "Marie" Guckenbiehl was made; that nothing further was done until an alias scire facias was issued against "Marie" Guckenbiehl, and after a second return of nihil as to her, judgment was entered against both her and the terre tenants, William Wunch and Louisa Wunch, for want of an appearance and affidavit of defence; that the said William Wunch and Louisa Wunch not only knew of the issuance of the scire facias, from the service of it upon them personally, but from the further fact of their consulting August J. Guckenbiehl and their attorney relative to its effect. Afterwards, a fieri facias was issued to No. 79 September Term, 1918, and the real estate above mentioned levied upon by the sheriff, inquisition held, and notice of the holding of the inquisition was served personally upon William Wunch and Louisa Wunch, neither of whom appeared at the inquest. The jury extended the property for the statutory period, and a liberari facias was issued to enforce the collection of the debt from the income of the property, when a rule was obtained to strike off the judgment, and thereafter the present rule to open judgment was obtained, which rule now brings up the question before the Court. The contention of the defendant is that by reason of the name "Marie" not being the same as "Mary Ann" or "Marian" the Wunch's were not bound to take notice that this judgment was a lien upon the property, and that not having had notice of the lien of the judgment, they are not terre tenants, as the judgment against "Marie" Guckenbiehl was not a lien on the land at the time of purchase. The contention of the plaintiff is that they have had their day in Court, had the advice of counsel, had the scire facias served upon them and notice of the inquisition, and that everything was done that could have been done to bring them into Court; that it would be inequitable after all the trouble and expense, to permit them now to come in and make a defence which they had every opportunity to make before, and that therefore they ought to be bound by the judgment. This latter is the view we also take of it, for while the Wunch's may not have been bound to take notice of the judgment, it is admitted that "Marie" Gucken |