Opinion,
Mr. Justice Williams:
The lines of certified lot No. 26 in Kingston township, Luzerne county, are not in controversy in this case. The lot is forty-six rods wide and about two miles long,' extending from the Susquehanna river, in a westerly direction, to the top of the mountain. On the side of the mountain, near the middle of the tract, is a piece of woodland, containing about eighteen acres, which is the subject of dispute.
On the trial in the court below the plaintiffs showed title to the whole of lot No. 26 in Elisha Atherton, traced that title from him to themselves, and rested. The burden of showing that his possession was rightful then rested on the defendant, and, if he failed to do this, the plaintiffs were entitled to recover upon the strength of their own title. The defendant, to maintain the issue on his part, gave in evidence a deed made by Elisha Atherton to John W. Huff in 1847, for a lot off the western end of lot No. 26, “ supposed to contain eighty acres of' land, be the same more or less,” which he alleged covered the land described in the writ. If this was so, the defendant was the holder of the Atherton title to the land in controversy, and was entitled to a verdict in his favor. The case turned, therefore, on the proper location of the division line separating what Atherton sold to Huff from that which he retained for himself. This line was described in the deed as follows : “ Beginning at a stone corner agreed on, on the line between lots Nos. 25 & 26; thence north, thirty-four and one half degrees east, about forty-six rods, at right angles, so as to touch the fence at the southeast part of the improvement; thence to the line of lot No. 27 to a comer.” The other three lines were the lot lines of No. 26, and are not in controversy. The plaintiffs contended that the division line was between sixty and seventy rods farther west than the. defendant sought to locate it, and included no part of the land in dispute; but no question was made over [561] tbe validity of tbe deed, or tbe defendant’s title to tbe land covered by it.
If we turn to the deed, and examine the description of this line, we shall find that its location is fixed by reference to three monuments on the ground. These are the “stone corner agreed on, on the line between lots Nos. 25 & 26,” which is the starting point; the corner on the line of lot No. 27, which is its northern terminus ; and the “fence at the southeast part of the improvement,” which is an intermediate point. There are also three circumstances given by which to fix the direction of this line, viz.: The course, north thirty-four and one half degrees east; the angle formed by it with the line on which it rests, a right angle; and its length, forty-six rods, which is the breadth of the tract. The two last are inconsistent with the first, and, taken in connection with the other lines, show that the course given is a mistake. We have, then, a straight line, crossing the tract at right angles with the side lines, and resting on three monuments described, as the division separating the land that Atherton conveyed to Huff from that which he retained. There was therefore no patent ambiguity on the face of the deed, but an evident mistake in the course given. There was no latent ambiguity, unless it was raised by evidence tending to show the existence in 1847 of two improvements, having each a fence at the southeast part, either of which might answer the description of the intermediate point given in the deed. The only real question raised was, where is the eastern line of the defendant’s land ? Upon this question the defendant had the burden of proof, and it was his duty to show to the satisfaction of the court and jury that his eastern line, as found on the ground, inclosed the land claimed by the plaintiffs. Failing to do this, he failed in his defence, and the plaintiffs are entitled to recover: Miller v. Smith, 33 Pa. 386.
Now, there was no doubt or uncertainty about the line described in the deed. The difficulty encountered in the case was not in understanding the language employed, but in finding the landmarks named as fixing the location of the line on the ground. The jury was to fix, if they could do so, the starting point, the stone corner agreed on, on the line between lots Nos. 25 and 26. If no marks of this corner capable of identification could be found, they were to look for the corner [562] opposite on the line of No. 27. If the search was equally unsuccessful, there remained the intermediate point, “ the improvement.” Where was this improvement? The grantor was describing a lot of land which he was conveying, and wherever he had occasion to refer to an object not upon it he describes it. He begins the division line in the boundary of No. 25. It ends on the line of No. 27. On its way it passes “an improvement,” which is presumably upon the land conveyed. But the land conveyed lay northwest of this line, and an improvement upon it extending to or near the line would have the line on its southeast side. The intermediate point is described as “ a fence at the southeast part of the improvement.” The jury was therefore to look for evidences of an improvement on the land conveyed, with a fence standing, in 1847, on its southeast side, or at its southeast part. If the improvement had been on the other side of the line it would have been its northwest part that would have been touched; and if the line had been so run as to touch the cleared land on that side, it would have been the farm of Mr. Atherton, which had been cleared and cultivated for many years, and had his dwelling-house and farm buildings upon it, that it would have skirted. If the place of a fence at the southeast part of the improvement can be fixed, that will fix one of the three points called for, and locate the line. If neither of the three can now be fixed, the defence fails for the reason already given.
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Opinion,
Mr. Justice Williams:
The lines of certified lot No. 26 in Kingston township, Luzerne county, are not in controversy in this case. The lot is forty-six rods wide and about two miles long,' extending from the Susquehanna river, in a westerly direction, to the top of the mountain. On the side of the mountain, near the middle of the tract, is a piece of woodland, containing about eighteen acres, which is the subject of dispute.
On the trial in the court below the plaintiffs showed title to the whole of lot No. 26 in Elisha Atherton, traced that title from him to themselves, and rested. The burden of showing that his possession was rightful then rested on the defendant, and, if he failed to do this, the plaintiffs were entitled to recover upon the strength of their own title. The defendant, to maintain the issue on his part, gave in evidence a deed made by Elisha Atherton to John W. Huff in 1847, for a lot off the western end of lot No. 26, “ supposed to contain eighty acres of' land, be the same more or less,” which he alleged covered the land described in the writ. If this was so, the defendant was the holder of the Atherton title to the land in controversy, and was entitled to a verdict in his favor. The case turned, therefore, on the proper location of the division line separating what Atherton sold to Huff from that which he retained for himself. This line was described in the deed as follows : “ Beginning at a stone corner agreed on, on the line between lots Nos. 25 & 26; thence north, thirty-four and one half degrees east, about forty-six rods, at right angles, so as to touch the fence at the southeast part of the improvement; thence to the line of lot No. 27 to a comer.” The other three lines were the lot lines of No. 26, and are not in controversy. The plaintiffs contended that the division line was between sixty and seventy rods farther west than the. defendant sought to locate it, and included no part of the land in dispute; but no question was made over [561] tbe validity of tbe deed, or tbe defendant’s title to tbe land covered by it.
If we turn to the deed, and examine the description of this line, we shall find that its location is fixed by reference to three monuments on the ground. These are the “stone corner agreed on, on the line between lots Nos. 25 & 26,” which is the starting point; the corner on the line of lot No. 27, which is its northern terminus ; and the “fence at the southeast part of the improvement,” which is an intermediate point. There are also three circumstances given by which to fix the direction of this line, viz.: The course, north thirty-four and one half degrees east; the angle formed by it with the line on which it rests, a right angle; and its length, forty-six rods, which is the breadth of the tract. The two last are inconsistent with the first, and, taken in connection with the other lines, show that the course given is a mistake. We have, then, a straight line, crossing the tract at right angles with the side lines, and resting on three monuments described, as the division separating the land that Atherton conveyed to Huff from that which he retained. There was therefore no patent ambiguity on the face of the deed, but an evident mistake in the course given. There was no latent ambiguity, unless it was raised by evidence tending to show the existence in 1847 of two improvements, having each a fence at the southeast part, either of which might answer the description of the intermediate point given in the deed. The only real question raised was, where is the eastern line of the defendant’s land ? Upon this question the defendant had the burden of proof, and it was his duty to show to the satisfaction of the court and jury that his eastern line, as found on the ground, inclosed the land claimed by the plaintiffs. Failing to do this, he failed in his defence, and the plaintiffs are entitled to recover: Miller v. Smith, 33 Pa. 386.
Now, there was no doubt or uncertainty about the line described in the deed. The difficulty encountered in the case was not in understanding the language employed, but in finding the landmarks named as fixing the location of the line on the ground. The jury was to fix, if they could do so, the starting point, the stone corner agreed on, on the line between lots Nos. 25 and 26. If no marks of this corner capable of identification could be found, they were to look for the corner [562] opposite on the line of No. 27. If the search was equally unsuccessful, there remained the intermediate point, “ the improvement.” Where was this improvement? The grantor was describing a lot of land which he was conveying, and wherever he had occasion to refer to an object not upon it he describes it. He begins the division line in the boundary of No. 25. It ends on the line of No. 27. On its way it passes “an improvement,” which is presumably upon the land conveyed. But the land conveyed lay northwest of this line, and an improvement upon it extending to or near the line would have the line on its southeast side. The intermediate point is described as “ a fence at the southeast part of the improvement.” The jury was therefore to look for evidences of an improvement on the land conveyed, with a fence standing, in 1847, on its southeast side, or at its southeast part. If the improvement had been on the other side of the line it would have been its northwest part that would have been touched; and if the line had been so run as to touch the cleared land on that side, it would have been the farm of Mr. Atherton, which had been cleared and cultivated for many years, and had his dwelling-house and farm buildings upon it, that it would have skirted. If the place of a fence at the southeast part of the improvement can be fixed, that will fix one of the three points called for, and locate the line. If neither of the three can now be fixed, the defence fails for the reason already given.
The acts of Huff in cutting timber on the land at times during the forty-three years, have no significancy, unless it appears that such acts were known to Atherton. The learned judge ' was asked by the plaintiffs’ third point to so instruct the jury, and made answer, “ That point we decline to affirm; ” adding, that whether Atherton had knowledge of the acts of Huff was, under all the evidence, for the jury to determine. This part of the answer was undoubtedly right. Atherton’s knowledge . was to be settled by the jury as a question of fact, but the plaintiffs asked the court to say as a matter of law that, unless the jury should find the fact of knowledge, the acts of Huff . could not affect Atherton. This should have been affirmed. ,The same question was presented in another form by the plaintiffs’ fifth point, which asked the court to say that, in the absence of proof of knowledge by Atherton, the mere fact of [563] the cutting of timber, as alleged, on unenclosed woodland, could neither give title under the statute of limitations, nor serve to locate the division line by the acts of the parties. The learned judge replied, “ As a whole, we cannot affirm that point, and we negative it.” But it is well settled that occasional entries on unenclosed woodland will not give title: Burke v. Hammond, 76 Pa. 172. On the other hand, an adverse possession such as will ripen into a title under the statute, must be open, adverse, continuous. Such has been the rule since Johnston v. Irwin, 3 S. & R. 291, and if we except Waggoner v. Hastings, 5 Pa. 300, and a few cases following it, the rule has been held with steadiness and without relaxation. It is equally clear that a man cannot give a construction to a deed, or make a consentable line, by not dissenting from acts of which he had no knowledge. He must know' of the act which is adverse to his title before any duty arises in regard to it.
What has now been said is applicable to the fourteenth and fifteenth assignments of error. The question before the jury was, where is the line separating the land sold to Huff from the remainder of Atherton’s farm ? Any acts or declarations of Atherton, tending to answer this question or to throw light upon it, are competent. But acts of Huff, not brought to his attention, are competent for no purpose whatever, so far as this question is concerned.
The subject brought to our attention by the twenty-fifth assignment is one of some importance; and, while we are unwilling except in a clear case of abuse of discretion, to interfere with the control of the argument by the court below, we feel it our duty to call attention to the test which should be applied to the remarks of counsel in such cases. The object of a trial at law is to do exact justice between the parties. Allusions to the wealth or poverty of the parties, to the strength of municipal or private corporations, and the comparative helplessness of an individual citizen, are proper when they are made in a spirit of fairness, and for the purpose of stimulating the jury to a careful and conscientious discharge of their duty in the particular case; but when such allusions are made, and the changes are rung upon them, for the evident purpose of inflaming the passions and prejudices of jurors, and leading them to disregard their duty, to overlook the actual facts, or set aside a clear le[564] gal right, they are improper and reprehensible. The advocate who makes them forgets his official oath, and the judge who permits them neglects a clear official duty. We do not undertake to characterize what is brought to our attention by this assignment. We have nothing of the connection in which the words objected to were spoken. The court may have been right (and we assume it was) in declining to interfere in this instance, but the plaintiffs had a right to have the stenographer enter upon his notes any objectionable remarks made by counsel in the argument; and if the evident purpose and natural effect of what was said was to excite prejudice, and so obscure the real questions involved, it was the duty of the court to interfere and direct the discussion into legitimate channels.
W e have not taken up the numerous assignments of error in their order, but we have endeavored to indicate the lines within which the trial of this case should be conducted, and the errors into which the theory upon which it was tried led the learned judge.
The judgment is reversed, and a venire facias de novo awarded.