Appeal, No. 68, Jan. T., 1958, from judgment of Court of Common Pleas of Lackawanna County, Sept. T., 1955, No. 1933, in case of Hazel Weidman Shaffer v. Baylor's Lake Association, Inc. Judgment reversed; reargument refusecd May 29, 1958.
Thomas J. Foley, with him John Morano, and Paul E. Pendel, for appellant.
William J. McDonald, with him John W. Bour, R. Bialkowski, and O'Malley, Morgan, Bour & Gallagher, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff is the owner of an undivided 7/9ths interest in a certain dwelling and farmland abutting the southerly shores of Baylor's Lake. Baylor's Lake is a non-navigable body of water in Fleetville, Lackawanna County, Pa. In 1953 plaintiff brought this action to quiet title to the use of the waters of Baylor's Lake, claiming by prescription swimming, boating, fishing and skating rights, and also commercial boating rights. The jury returned a verdict in favor of the plaintiff. The lower Court entered judgment for the defendant non obstante veredicto, whereupon plaintiff appealed to this Court.
"In considering a motion for judgment n.o.v. it is hornbook law that the verdict winner must be given the benefit of the evidence which is most favorable to him (her or it), together with all reasonable inferences therefrom: Bream v. Berger, 388 Pa. 433, 130 A.2d 708.": Farmers' Northern Market Co. v. Gallagher, 392 Pa. 221, 139 A.2d 908. Considering the evidence in the light most favorable to plaintiff, the jury could have found that plaintiff proved the following facts.
In 1903 plaintiff's grandfather purchased the farm in question and took title in the name of his wife, Tamer J. Wiedman. The farm has a dwelling house and outbuildings, and extends along the high water mark of the lake for a distance of approximately 650 feet. Since 1903, some member or members of the Wiedman family have always held title to and possessed and occupied this property. Plaintiff's niece, Virginia Wiedman, owns the remaining undivided 2/9ths interest and is living in the property with plaintiff and plaintiff's mother.
Commencing in 1903 the Wiedman family have used Baylor's Lake in all seasons of the year. From 1903 until the present time the Wiedman family and their guests used the lake for swimming, boating and fishing during the Spring, Summer and Fall of every year - in other words, in season. Furthermore, they fished all year even in Winter when at times they had to cut holes in the ice. They also used the lake in front of their land to water their cattle from the time they purchased the farm until 1947, when they sold their cattle. In 1922 they built a stone dock into the lake and extended it after 1926. This dock has been used by them for over 21 years. An old milk house on their property was converted in 1930 into a boat house and was moved to the shore of the lake and was used inter alia by guests to change into bathing suits. The Wiedman family in the wintertime used the frozen surface of the lake for sleigh riding and for cutter riding, although the evidence on this use was meager. From 1915 to 1918 and from 1923 to 1940 the Wiedman family rented boats, but the evidence as to this commercial renting was meager and inadequate.
In 1953, fifty years after the Wiedman family commenced to use the waters of the lake abutting their farm, defendant ...