Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1963, No. 4421, in case of Harold A. Stevenson and Elsie B. Stevenson, as tenants by the entireties, Gloria Wydrznyski, Richard J. Ferrell et al. v. Louis Silverman, Elias H. Stein, Samuel R. Rosenbaum et al.
Lawrence J. Richette, for appellants.
Jerome J. Shestack, with him George P. Williams, III, Sidney B. Gottlieb, and Schnader, Harrison, Segal & Lewis, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
This is an appeal from an order below dismissing a petition for a declaratory judgment.
This is the factual background.
On June 4, 1959, Harold Stevenson filed a petition for a declaratory judgment (to No. 199 June Term 1959) in the Court of Common Pleas of Philadelphia County, praying that he be declared the owner of 64 acres of land in the Eastwick section of Philadelphia. After answer filed, a trial, consuming twenty-four days, ensued. Subsequently, the action was dismissed
and judgment entered for the defendants. On appeal, we affirmed, 412 Pa. 478, 195 A.2d 268 (1963).
In that action, the plaintiff, Stevenson, claimed title to the land involved because he or members of his immediate family had been in continuous, open, exclusive, and hostile possession thereof for more than twenty-one years, and, therefore, he was the owner by adverse possession. Stevenson did not maintain or attempt to establish that he personally was in possession for the entire twenty-one year period, but he did urge, and offer testimony to establish, that he was in possession for a portion of the required period, and that members of his family were in successive possession for an additional period of time which, when added together, satisfied the twenty-one year requirement. In other words, the plaintiff's case depended "upon the theory of 'tacking'; that is, that the plaintiff and members of his family together had accomplished that which the law required in adverse possession." Brief for Appellant, p. 69, Stevenson v. Stein, 412 Pa. 478, 195 A.2d 268 (1963). This was the issue raised both by the pleadings and the proof.
At trial, plaintiff offered not only his own testimony to prove the claim, but also that of each and every member of his family who allegedly joined in the successive possession of the land. Many witnesses were offered in contradiction. The lower court decided the issue on the merits and found, inter alia, that neither "the plaintiff or his privies" (members of his family) were in continuous possession "of any part of the land" for the required twenty-one year period, and therefore concluded that one of the necessary elements of adverse possession had not been established.
Shortly after our affirmance of the lower court's findings and judgment, the present proceedings were instituted. The facts alleged herein are precisely identical with ...