Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1959, No. 1285, in case of John Lieber et ux. v. Charles Eurich et ux.
Henry G. Beamer, with him Thomas H. Welsh, and Metz, Cook, Hanna & Kelly, for appellant.
Eugene J. Reinbold, with him Robert A. Jarvis, and Beck, McGinnis & Jarvis, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J.
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This is an appeal by the surviving plaintiff, John Lieber,*fn1 from a judgment entered in favor of the surviving
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defendant, Grace C. Eurich, on a jury verdict returned in her favor. The action originally began with the filing of a complaint in equity seeking an injunction against continuing trespasses on their land, and damages. By stipulation of counsel it was certified to the law side of the court. The first trial, which was held in 1961 before Hon. John T. Duff, Jr., now deceased, who heard the matter without a jury, resulted in an adjudication in favor of the defendants, Charles Eurich and Grace C. Eurich, his wife, but on appeal a new trial was granted. Lieber v. Eurich, 201 Pa. Superior Ct. 186, 192 A.2d 159 (1963).
The original parties were the owners of adjoining properties in Richland Township, Allegheny County, Pennsylvania. The defendants claimed an easement by prescription over plaintiffs' land, the existence of which was denied by plaintiffs.
The only issue presented to us is whether the trial judge erred in excluding the testimony of appellant, John Lieber, under the Dead Man's Act of May 23, 1887, P. L. 158, § 5, cl. (e), 28 P.S. § 322. To resolve this issue certain undisputed facts must be recited. John and Joan S. Lieber acquired their property in 1946 by deed from Charles and Clarence B. Harbison, who were both deceased at the time of the original trial. Charles and Grace C. Eurich acquired their property from H. L. Cunningham and Lillie Mae Cunningham, his wife, parents of Mrs. Eurich, by deed dated January 21, 1954. Said deed included appurtenances and contained
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a covenant of general warranty. The Eurichs had occupied the property as tenants under leases from Albert Ritz et ux., former owners, and the Cunninghams continuously from 1930 to the time they acquired title from the Cunninghams, and thereafter as owners. Albert Ritz et ux. had been the owners of the property from 1905 to 1932, when they conveyed it to the Cunninghams. Mr. and Mrs. Ritz and Mr. and Mrs. Cunningham, Joan S. Lieber and Charles Eurich were all deceased at the time of this retrial, which began March 14, 1966.
The issue before us centers on the date of the death of Mrs. Cunningham, March 8, 1961, her husband having predeceased her. The question is whether the plaintiff-appellant should have been permitted to ...