Goldberg v. Mesta MacHine Co.

53 A.2d 424, 357 Pa. 8

• Court: Supreme Court of Pennsylvania
• Decided: March 28, 1947
• Docket: Appeal, 5
• Status: Published

Opinion

Per Curiam,

This was an action in ejectment arising out of a dispute over the location of a boundary line between adjoining properties of the plaintiffs and defendant, fronting on the southerly side of Eighth Avenue in the City of Pittsburgh. The area in controversy consists of a narrow strip between the boundary contended for by plaintiffs and the boundary as contended by defendant, 200 feet in length and varying from 5 feet in width at the northerly end to a point at the southerly end, containing approximately 511 square feet. Each side filed a point for binding instructions. The trial judge refused to give binding instructions in favor of either side and the jury returned a verdict in favor of the defendant. Plaintiffs filed a motion for judgment non obstante veredicto which was refused, and this appeal was then taken.

The boundary line in dispute is the easterly line of a forty-foot wide right-of-way belonging to defendant and adjoining plaintiffs’ property on the westerly side. The description of the center line, insofar as here material, reads as follows: “thence north 53° 57' east ... a distance of one hundred thirteen and seventy-seven hundredths (113.77) feet to a point of curve; thence . . . with a curve deflecting to the left with a radius of 915.93 feet a distance of three hundred fifty-nine and forty-one hundredths (359.41) feet to a point of tangent; thence north 30° 23' east, crossing Eighth Avenue Fifty Feet wide, a distance of three hundred ninety-seven and thirty-two hundredths (397.32) feet to a point ... at which last mentioned point the center, line of the Forty Foot right-of-Way intersects the center line of a Fifteen Foot right-of-way . . .”

Both sides concede that the description of the right-of-way is mathematically incorrect — that the scrivener erred either in calculating the tangent at the northerly end of the curve (since it can be mathematically shown that a line having a bearing of 30° 23' would not be tangent to a 359.41-foot arc with a given radius of 915.93 feet) or that he erred in calculating the length of the radius. On the pleadings and evidence a single, narrow question of fact was presented, namely, whether the error was in calculating the bearing of the northerly tangent or in calculating the length of the radius. Under all the evidence, expert and otherwise, this question was clearly one for the jury to decide, under proper instructions which were given. Plaintiffs’ motion for judgment non obstante veredicto was, therefore, rightly refused.

Judgment affirmed.