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Lang Co. v. Fort

February 6, 1935

LANG CO.
v.
FORT



Appeal from the District Court of the United States for the District of New Jersey; John Boyd Avis, Judge.

Author: Davis

Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

This is an appeal from a judgment of the District Court ejecting the defendant, the Lang Company, from two tracts of land mentioned and described in the complaint and judgment.

The Pusey & Jones Company owned a certain tract of land in Camden county, N.J., and its receivers sold a portion of it to the Lang Company which erected a plant thereon. It purchased from Fort an interest in two tracts adjoining its plant. The deed of conveyance, it is alleged, from Fort to the Lang Company created an easement for the use of two railroad tracks by the Lang Company.

It appeared at the argument that a controversy arose between the parties over the alleged easement and suit was started in the court of chancery to determine the rights of the parties. The vice chancellor who was hearing the case expressed a desire to have the extent of the easement determined in appropriate proceedings at law. Thereupon the proceedings in the court of chancery were halted and the proceedings in the District Court were begun.

At the conclusion of the trial, the court directed a verdict for the plaintiff on which judgment was entered for the recovery of the land by the plaintiff.

Before the trial in the District Court, the plaintiff filed a demand for a bill of particulars in order that he might know the defense upon which the Lang Company intended to rely as to title at the trial. He was thus enabled to prepare his case. The plaintiff offered this bill in evidence and it was admitted over objection. Defendant says it was inadmissible. The Court of Errors and Appeals in New Jersey in the case of Parrot v. Nugent, 91 N.J. Law. 302, 102 A. 899, held that the bill of particulars was admissible as an admission against the party delivering it. The trial court admitted it on the authority of Lee v. Heath, 61 N.J. Law, 250, 39 A. 729, but the defendant says that that case did not justify the use made of it in the case of Parrot v. Nugent, but, however that may be, the Court of Errors and Appeals did decide that the bill of particulars was admissible against the party furnishing it and we do not think that the trial court in the case at bar erred in admitting it.

By this bill the plaintiff showed that the defendant claimed under him.

Defendant raised the question of jurisdiction and says that the trial court erred in permitting the plaintiff to testify over objection that the value of the land in question exceeded $3,000.

The defendant did not plead to the jurisdiction of the District Court on the ground that the requisite amount was not involved, but simply denied "the truth of the matters contained in the complaint."

The plaintiff paid in excess of $500,000 for the entire Pusey & Jones tract of 160 or 170 acres and testified that the land in question was worth more than $3,000. He had been in the business of handling real estate, principally industrial properties, for eight or nine years. Whether or not he had such special knowledge or experience as to qualify him to give opinion evidence as to the value of the land was a question of fact for the determination of the trial judge whose finding is not reviewable here if there was any legal evidence to support it. While the supporting evidence may have been slight, we cannot say that there was no legal evidence to support it. Further, proof in support of an averment that the requisite jurisdictional amount was involved need not be offered where the defendant does not plead to the jurisdiction of the court on that ground. Bitterman v. Louisville & Nashville Co., 207 U.S. 205, 28 S. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693.

The next reason assigned by the defendant as to why the judgment should be reversed was the refusal of a motion for a nonsuit on the ground that the plaintiff had not shown possession in himself or in any antecedent of his title, and that he had not traced his title back to the original proprietors.It further contends that the plaintiff must recover on the strength of his own case and not on the weakness of his adversary; that he had not shown a title in himself against which an exclusive title in defendant would be wrongful; and that it was entitled to a nonsuit under the authority of Troth v. Smith, 68 N.J. Law, 36, 52 A. 243, 244, and Jacobson v. Hayday, 83 N.J. Law, 537, 83 A. 902. In the Troth Case the court said:

"The rule is settled that the plaintiff must recover upon the strength of his own title, and that he cannot rely upon the weakness of that of his adversary. If he fails to support his own title, the defendant will retain ...


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