1864.
Phillips versus Phillips.
Right of way.—Effect of imposition of servitude on land by owner.
Error to the District Court of Allegheny county.
This was an action on the case by George Phillips and others, minor children of Thomas Phillips, and grandchildren of David Phillips, deceased, by their next friend Enoch Phillips, against Nelson Phillips, Evan E. Phillips and others, to recover damages for the obstruction of an alleged right of way which the plaintiffs claimed over a piece of land in which Nancy Phillips held a life estate, with remainder in fee to Nelson Phillips, one of the plaintiffs.
David Phillips, the father of some of the defendants, and grandfather of the plaintiffs, was in 1841 the owner of about one hundred and fifty acres of land in Snowden township, on which he resided with his family.
He had three sons, Thomas, Nelson, and Evan, and three daughters, viz., Mary Ann, Amanda, and Lucinda. The two latter were married, one to a Mr. Larimer, the other to Mr. Anderson; while Mary Ann remained unmarried.
Thomas married in 1829, and some time afterwards his father put him on one part of his land, which had certain metes and bounds, containing about forty acres. But at what particular time he first went on this land the witnesses were not agreed; some fixing a much earlier period than others. The latest time mentioned by any of them was about 1842 or 1843; but he lived on a six-acre lot, which subsequently formed a part of the forty acres, for several years before 1843.
This forty-acre tract, according to plots given in evidence, lay between two public roads. The upper road, as it was called, ran along his line for some distance, and then branched off; one branch leading to Pittsburgh, and the other to a village called "Library," and thence to Pittsburgh. The other or lower road, called the "Baptist Church Road," ran about twenty rods from his line on the opposite side of his land, and past his father's house, thence to Library, and beyond that to the church.
Thomas first moved into an old house, but subsequently built a new one, in which he lived until his death in 1855. This house was some distance from the dividing line between him and his father, on that side of his land toward the Baptist Church Road and his father's house.
Nearly all the witnesses concurred in saying that from the time he first moved on this land until his death, he used a private road from his house across his father's land to the Baptist Church Road, near his father's house, from twenty to twenty-five years, for going to mill, market, church, hauling coal, &c. Some of the witnesses testified that this road at an early period was fenced on both sides from his line to the public road, and that afterwards the old man took away a portion of the fence, and erected a water-trough for the purpose of watering his stock. After that, gates or bars were put up at both ends, viz., at Thomas's line, and at the public road.
These were kept up most of the time, but sometimes, the witnesses testified, there were neither bars nor gates. The ground over which this road passes is a ravine, not fit for cultivation, and the lot is small, containing about an acre and a half.
In 1855 Thomas died, leaving a widow and a number of children, the plaintiffs in this action, who continued to reside on the place, and to use this road without molestation until December 1862, when three staked and ridered fences were put across it, one at the road, one at Thomas's line, and one midway between. David Phillips died in October 1856, and his widow still lives in the house where David lived and died.
In addition to the foregoing evidence, the plaintiffs introduced the following agreement:—
"Article of agreement, made and entered into this ninth day of July, A. D. 1855, by and between David Phillips, of Snowden township, Allegheny county, and state of Pennsylvania, of the first part, and Loami McLarimer, on behalf of the widow and heirs of Thomas Phillips, deceased, of the second part, witnesseth: That the said David Phillips, for and in consideration of the surrender and giving up of a promissory note for the sum of three hundred and fifty-nine dollars, dated May 21st 1845, given by the said David Phillips to the said Thomas Phillips, as well as other good causes and consideration, do hereby promise and agree that the widow and heirs of the said Thomas Phillips, deceased, shall and may continue to occupy and reside upon the premises and tract of land occupied by the said Thomas Phillips, at and before the time of his death, containing about forty acres, for and during the natural life of him the said David Phillips, he the said Larimer, or they the said widow and heirs, yielding and paying unto the said David Phillips, during his lifetime, the yearly rent of ten dollars, and paying all taxes that may be assessed on said land; and at the death of the said David Phillips, they, the said heirs of the said Thomas Phillips, shall hold and possess the said tract of land to them and their heirs and assigns in fee simple. Witness our hands and seals the date above written.
"David Phillips, [l. S.] "L. Mclarimer. [l. S.]
"Attest: Joseph Phillips.
"Proved before Alderman Steel, October 4th 1859, by Joseph Phillips, and recorded the same day."
They then gave evidence showing that the defendants had built the fence complained of, and closed their case.
The defendants contended the plaintiffs had no right to the use of the road claimed, and that they were justifiable in closing it up. They gave evidence without objection showing that the plaintiffs or some of them abused their right, if they had any, by leaving the gates or bars open when they passed through, and alleged this to be a justification of their act in fencing it up.
They also gave some evidence tending to show that before the present road vras used, Thomas Phillips used a road over another part of the land of David Phillips, and contended that the plaintiffs had shown no right, either by prescription, grant, or necessity to use this road.
In addition to the foregoing evidence, they also introduced the will of David Phillips, made in 1853, and proved in October 1856, in which he devised the homestead, with thirty and a half acres of land to his widow, certain privileges to his unmarried daughter, Mary Ann, and after the death of his widow, the same to be divided between Nelson and Evan, two of the defendants, they paying certain legacies to Thomas and their sisters. After disposing of the homestead he went on to make the following dispositions, viz.: "And further, I give and devise unto my son Thomas Phillips that part of my farm on which he now lives, containing forty acres, with the improvements, goods, chattels, &c., appertaining, for him, his heirs and assigns, to have and to hold for ever. And also unto Nelson Phillips I give and devise that part of my farm on which he now lives, containing forty acres, with the improvements, for him, his heirs and assigns, to have and to hold for ever. Also, I give and devise unto Evan Phillips that part of my farm on which he now lives, containing forty-one acres, with the improvements, for him, his heirs and assigns, to have and to hold for ever."
Then, after making some provisions in regard to the farming of the thirty and a half acres by Nelson and Evan, for his widow and daughter Mary Ann, he made the following conditions, viz.: "In consideration of these donations, all claims of either or any legatee shall be satisfied in the above gifts, which shall stand in lieu against all such claims arising or to arise by said legatee."
The plaintiffs claimed that taking all the evidence to be true, they were entitled to recover. That taking into consideration the evidence as to the use of the road, with the knowledge and consent of the father, the will of David Phillips, the article or deed of the 9th July 1855, and all the other facts in evidence, they had established a clear and indisputable right to the use of this road.
On the trial, in the court below, the plaintiffs' counsel offered to prove by James Boyd that Hiram McCabe, one of the defendants, had told him that David Phillips told McCabe that he had granted this right of way to Thomas Phillips and his family.
To this evidence defendants' counsel objected, because it was an attempt to prove a parol grant of a right which could only be created by deed; but the court overruled the objection, and sealed a bill of exception.
Under the instructions of the court, there was a verdict and judgment against Nelson Phillips and Evan E. Phillips for $250, and in favour of the other defendants, Mary Ann Phillips and Hiram McCabe, whereupon this writ was sued out by Nelson and Evan Phillips.
...................Judgment affirmed.
Source: Pennsylvania State Reports, Vol. XLVIII, Comprising Cases Adjudged In The Supreme Court Of Pennyslvania, By Robert E. Wright, State Reporter, West Publishing Co., 1865; Pgs. 178-187
