Lykens v. Whelan

Supreme Court of Pennsylvania

Lykens v. Whelan

15 Pa. 483, 1851 Pa. LEXIS 45

DecidedApril 15, 1851

StatusPublished

This text of 15 Pa. 483 (Lykens v. Whelan) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lykens v. Whelan, 15 Pa. 483, 1851 Pa. LEXIS 45 (Pa. 1851).

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Opinion

Per curiam.

The plaintiff, having shown no title, could recover only on proof of an ouster; but, as a foundation for it, he was bound to prove a previous possession; and both the ouster and the possession were to be clearly made out. By the terms of his contract with Geisse, he was not to have the title before he had finished the building for which it was part of the consideration. In the mean time, he entered on the lot with Geisse’s assent, and exercised an act of ownership by paving a gutter in front of it, to comply with an ordinance of the borough. Whether he abandoned the possession, or surrendered it to the defendant, does not appear ; but we hear no more of it for three years, when this action was brought. The defendant had, in the mean time, entered and built a valuable house. There was, therefore, very slight evidence of possession, and no evidence of ouster at all. The case would have stood thus even had all the evidence been admitted; and as the defendant might have safely demurred to it, the plaintiff could not be prejudiced by the exclusion of a part of it.

Judgment affirmed.

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Per curiam.

The plaintiff, having shown no title, could recover only on proof of an ouster; but, as a foundation for it, he was bound to prove a previous possession; and both the ouster and the possession were to be clearly made out. By the terms of his contract with Geisse, he was not to have the title before he had finished the building for which it was part of the consideration. In the mean time, he entered on the lot with Geisse’s assent, and exercised an act of ownership by paving a gutter in front of it, to comply with an ordinance of the borough. Whether he abandoned the possession, or surrendered it to the defendant, does not appear ; but we hear no more of it for three years, when this action was brought. The defendant had, in the mean time, entered and built a valuable house. There was, therefore, very slight evidence of possession, and no evidence of ouster at all. The case would have stood thus even had all the evidence been admitted; and as the defendant might have safely demurred to it, the plaintiff could not be prejudiced by the exclusion of a part of it.

Judgment affirmed.

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Bluebook (online)

15 Pa. 483, 1851 Pa. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lykens-v-whelan-pa-1851.