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FLYNN v. RODKEY ET AL. (03/24/60)

March 24, 1960

FLYNN
v.
RODKEY ET AL., APPELLANTS.



Appeal, No. 430, Oct. T., 1959, from judgment of Court of Common Pleas of Centre County, Dec. T., 1957, No. 63A, in ejectment, in case of Doris Flynn v. Isabelle Thomas Rodkey et al. Judgment affirmed.

COUNSEL

Arthur C. Dale, for appellants.

Austin O. Furst, with him Furst and Furst, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Gunther

[ 192 Pa. Super. Page 58]

OPINION BY GUNTHER, J.

This appeal arises out of an action in ejectment. There was a jury verdict for Doris Flynn, plaintiff-appellee. A motion for judgment non obstante veredicto and a motion for a new trial were filed by the defendants, and both were refused.

The plaintiff and defendants are the respective owners of two adjoining lots on Market Street in the Borough of Milesburg. Lot No. 50 is owned by Doris Flynn and lot No. 52 is owned by Isabelle and Robert L. Rodkey. The dispute arose over the location of the common boundary line and the action was instituted to ascertain the ownership of a strip along plaintiff's western boundary. The jury found that the land or strip 7 inches wide on Market Street and 30 inches wide on the alley and 150 feet in length belonged to the plaintiff.

Several reasons are advanced for a new trial and judgment n.o.v. The important question is whether the jury verdict for the strip of land described in the stipulation is void since it fails to show where its boundary lines are located with relation to the land belonging to the defendants. The lower court refused the following point for charge: "If the jury finds from all the evidence that the plaintiff failed to establish a definite point of departure from which the lines of the Doris Flynn lot could have been easily traced, the verdict of the jury should be for the defendants."

The court below in its opinion and counsel for appellee concede that the description in the complaint is too vague to support an action in ejectment but no preliminary objections, however, were filed to the complaint. Had they been filed they would have been sustained. Instead of the preliminary objections appellants filed an answer and also subsequently filed the following stipulation: "It is stipulated and agreed between Counsel for the plaintiff and Counsel for the

[ 192 Pa. Super. Page 59]

    defendant that the correct description of the area in dispute is as follows: Beginning at an iron pin on the southern side of Market Street, said iron pin having been placed by F. E. Robinson; thence south 30 degrees east 150 feet to the northern side of an alley; thence south 60 degrees west 2 1/2 feet to an iron pin placed by J. Thompson Henry; thence north 29 degrees 30 minutes west 150 feet to an iron pin on the southern side of a sidewalk on the south side of Market Street, said iron pin being placed by J. Thompson Henry; thence north 60 degrees east 7 inches to an iron pin, the place of beginning; and that ...


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