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HOSTETTER v. COMMONWEALTH (05/21/51)

May 21, 1951

HOSTETTER
v.
COMMONWEALTH, APPELLANT



Appeal, No. 83, Jan. T., 1951, from judgment of Court of Common Pleas of Lancaster County, Dec. T., 1949, No. 40, in case of Agnes S. Hostetter v. Commonwealth of Pennsylvania. Judgment affirmed.

COUNSEL

Clarence C. Newcomer, with him Thomas C. Evans, Phil H. Lewis, Deputy Attorney General, Charles J. Margiotti, Attorney General, and Harold W. Budding, for appellant.

Paul A. Mueller, for appellee.

Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Bell

[ 367 Pa. Page 604]

OPINION BY MR. JUSTICE BELL

Plaintiff recovered a substantial verdict in a land damage case arising out of the relocation and widening (in 1947) of a State highway previously known as the New Holland Turnpike in Lancaster County. The real question involved is a narrow one -- what was the width of the plaintiff's property which was taken; and that in turn depends on whether a legal taking (for highway purposes) by the Commonwealth's predecessor in title, over 100 years ago, was 33 feet or 50 feet.

The records of the Court of Quarter Sessions of Lancaster County show that in 1798 land was taken for a 33 foot road. In 1810 the Lancaster and New Holland Turnpike Road Company, the Commonwealth's predecessor in title, was authorized to lay out a road not exceeding 50 feet in width. So far as this record shows, it is impossible to tell from the deeds of the present owners or of their predecessors in title their exact boundaries or the exact land taken by the New Holland Turnpike Road Company in 1810.All parties agreed that the hard surface (highway) road which had been actually and continuously in use from 1798 to 1947 was 18-20 feet in width. The public records of Lancaster County show no deeds and no court

[ 367 Pa. Page 605]

When a right or title is of ancient origin or where the transaction under investigation is so remote as to be incapable of direct proof by living witnesses or by the ordinary documentary evidence, the law, of necessity, relaxes the rules of evidence and requires less evidence to substantiate the fact in controversy. For example, ancient maps, records, surveys, ancient town plots, historical books which have been generally treated as authentic, reports made by disinterested parties apparently conversant with the facts and now dead, have been held admissible as furnishing evidence of remote transactions: Laidley v. Rawe, 275 Pa. 389 394, 119 A. 474, Maps, surveys, monuments, pedigree and even reputation evidence have been held to be admissible to establish boundaries: Over v. Lindsay, 255 Pa. 283, 99 A. 805; McCausland v. Fleming, 63 Pa. 36, 11 C.J.S. § 105-115. Moreover, boundaries may be established by circumstantial as well as by direct evidence: 11 C.J.S. § 116 page 714.

The map made for the Commonwealth by the State Highway Department which showed the same set of physical facts and monuments as did the testimony of the witnesses for plaintiff was likewise admissible. Of course this map did not disclose or purport to disclose how long the monuments or boundary lines had been in existence, or whether they marked the plaintiff's boundaries or were encroachments on land which might have been taken in 1810 by the Commonwealth's predecessor in title. However, the Commonwealth possessed or had access to the records of its predecessor in title (if such records are still in existence) and if 50 feet instead of 33 feet had been actually or legally taken for a highway in 1810, it has no one but itself to blame when it failed to produce or account for these records.

The Jury of View awarded the plaintiff $13,000 damages. The defendant ...


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