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BAKER v. ROSLYN SWIM CLUB (09/16/65)

decided: September 16, 1965.

BAKER
v.
ROSLYN SWIM CLUB, APPELLANT



Appeal from order of Court of Common Pleas of Chester County, July T., 1963, No. 114, in case of Evelyn Blust Baker v. Roslyn Swim Club.

COUNSEL

William H. Mitman, for appellant.

James E. O'Neill, Jr., with him Rogers & O'Neill, for appellee.

Ervin, P. J., Wright, Flood, Jacobs, and Hoffman, JJ. (Watkins and Montgomery, JJ., absent). Opinion by Ervin, P. J.

Author: Ervin

[ 206 Pa. Super. Page 193]

This is an action in ejectment between adjoining landowners to determine their mutual property line. By agreement of the parties it was tried by the court below without a jury, pursuant to the provisions of the Act of 1874, P. L. 109, as amended, 12 PS ยง 688. The parties filed a written waiver of specific findings of fact and conclusions of law and agreed that a general verdict might be entered. The case was tried before Gawthrop, P. J., who subsequently filed a decision, designated "Verdict," in favor of the defendant. Four days later the plaintiff's counsel filed a motion for new trial and a motion for judgment n.o.v. The court below pointed out that the Act of 1874 does not provide for such motions, but rather provides for exceptions to the findings of fact and conclusions of law. However, the court below, following the procedure in Miller v. Werner, 61 Montg. 73, treated the reasons assigned in the motion for new trial as being exceptions to findings of fact, and the motion for judgment n.o.v. as an exception to the conclusion of law. Since the court below handled the matter in that fashion without objection by either party, we shall do likewise, but our action in

[ 206 Pa. Super. Page 194]

    so doing must not be regarded as a precedent in future cases. The Act of 1874 is explicit in setting forth the procedure and it should be followed.

After argument on the motions as filed by the plaintiff, the court below, in an opinion by Gawthrop, P. J., reversed the decision of the trial judge and entered its decision in favor of the plaintiff. The defendant has appealed to this Court.

The plaintiff and defendant own adjoining tracts of land in a development called "Roslyn," West Goshen Township, Chester County, Pennsylvania. Both tracts are in an A Residence District under the local zoning ordinance and both are part of a considerably larger tract which was conveyed by Edward T. Biddle to Lewis S. Hickman, Jr. on November 15, 1943. On January 12, 1946, Lewis S. Hickman et ux. conveyed a substantial portion of the tract to William Drayman. Although the descriptions in the two deeds begin at different points and do not cover exactly the same property, nevertheless the boundary lines involved in the particular case are identical in both deeds.

In the Biddle deed, there is mention of a certain stone which is a corner of land belonging to the William Wells Estate. The description then follows "thence by the Wells Estate south seventy-nine degrees nineteen minutes west, two hundred fifty-two and four tenths (252.4) feet to a stone a corner of land belonging to Joseph W. Passmore; then by the Passmore land, the same course continued for an additional distance of two hundred thirty-seven and twenty-nine hundredths (237.29) feet to an iron pin set in a line of land belonging to Charles Murtagh; thence by the Murtagh land north twenty-six degrees fifty-nine minutes west, five hundred and eighty-two (582.0) feet to a stone a corner of land belonging to the John H. Darlington Estate; . . . ."

[ 206 Pa. Super. Page 195]

The description in the Hickman deed from the same stone monument reads as follows: "thence South seventy-nine (79) degrees nineteen (19) minutes West four hundred eighty-nine and sixty-nine hundredths (489.69) feet to an iron pin, a corner of now or late Charles Murtagh; thence along same North twenty-six (26) degrees fifty-nine (59) minutes West five hundred eighty-two (582) feet to a stone monument, a corner of now or late John H. Darlington; . . . ."

On May 8, 1956 William Drayman and Pearl Drayman, his wife, conveyed to the defendant, the Roslyn Swim Club, a portion of the above tract, which was recited to be "known as Lot No. 117 on a plan of lots made by Damon & Foster, C. E., as last revised March 15, 1948, for William Drayman, and bounded and described as follows:

"Beginning at a point in the southerly side of Spruce Avenue as the same is laid out and opened in the development known as Roslyn, at a corner of Lot No. 116, thence by said Lot No. 116 south eleven (11) degrees twenty-seven (27) minutes east three hundred thirty-four and forty-eight one-hundredths (334.48) feet to a stone in the southernmost perimeter of land conveyed to William Drayman by Lewis S. Hickman, Jr. and Margaret D. Hickman, his wife, by deed dated January 12, 1946; thence south seventy-nine (79) degrees nineteen (19) minutes west two hundred twenty-five and sixteen one hundredths (225.16) feet to a stake in line of land now or late of Charles Murtaugh; thence by same north twenty-six (26) degrees, fifty-six (56) minutes ten (10) seconds west three hundred thirty and seventy-one hundredths (330.70) feet to a point in line of Lot No. 118; thence by ...


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