Opinion by
Mb. Justice Williams,This case turns upon a single question of fact. The parties own adjoining farms which in 1826 came into the possession and ownership of two brothers, John Bennett and Thomas Bennett. John lived on his farm till his death in 1882 and his son, the plaintiff, succeeded him. Thomas died in 1842. On the settlement of his estate his farm became the property of T. Elwood Bennett his son, who in 1855 sold it to Abram Huey.' The defendant bought it in 1876. From 1826 to 1855, a period of twenty-nine years, both farms were owned by the Bennetts. During the next thirty-four years the defendant’s farm has been owned outside the Bennett family. The eastern boundary of the John Bennett farm is a public highway. The Thomas Bennett farm extends to and is bounded on the west by another highway. Extending from one of these highways to the other in a straight line, passing nearly through the centre of each farm, and making a means of direct communication between the farm buildings on both, is a lane or way that has' been in use since 1826. The "defendant obstructed this way on her side of the line between the farms, in 1889, and the plaintiff brought this action to test her right to maintain the obstruction. He alleges that he and his father, under whom he claims, have acquired a right to use the way by an original grant or by adverse user which presumes a grant. The defend*425ant maintains on the other hand that the use of the lane began, and has been continued, as a matter of mutual accommodation to the occupants of the respective farms, and has always been casual and permissive.
This presents the question of fact on which the case depends, viz.: What is the character of this way ? Has its use been permissive or adverse ? Upon the first trial of this case in the court below the learned judge held that, although the use of the way may have originated in the intimate relation of the brothers Bennett so that as between themselves no rights were acquired by the user; yet the sale of one of the farms to a stranger operated, as matter of' law, to dissolve the previously existing relations; so that if the plaintiff and his father thereafter “ used, occupied and enjoyed the way openly and notoriously, such an occupation, without opposition on the part of Mr. Huey and those who succeeded him in title, was in our opinion adverse.” We held that a change in the ownership of these farms did not necessarily work a change in the relations between their occupants, nor convert a use that had previously-been permissive, because mutually advantageous, into an adverse and hostile use. Whether such a change had taken place at any time in the attitude of the respective owners was a question of fact to be determined by the jury upon the evidence, not a question of law to' be determined by the court upon an inspection of the title papers: Bennett v. Biddle, 140 Pa. 896.
Upon the last trial the court below submitted the question to the jury and it has been decided in favor of the plaintiff. The jury have found as a matter of fact that the occupancy by the plaintiff and his father, of this way, has been adverse as well as open fo^ a period of twenty-one years or more. If this conclusion was reached upon competent' evidence and under proper instructions it should not be disturbed.
The first assignment of error is not sustained. The declarations of Hulme, a predecessor of the defendant in title, though not very strong, were competent evidence.
The statement of Pennell made to the defendant that in his opinion the way could not be lawfully closed by her may not be competent upon the main question of the character of the way. Pennell was a competent witness and his knowledge of any pertinent fact should have been shown by him as a witness; but upon the question of damages it was competent. It show*426ed that the defendant’s attention was upon the subject, and that one to whom she applied for an opinion, because of his knowledge of the facts, had advised her against obstructing the way. She did it therefore not in ignorance of the situation, but with full knowledge. The evidence showed her investigation and its results. The second assignment is therefore not sustained.
The remaining assignments to and including the seventh raise another question that may be best stated in the language of the defendant’s fourth point: “ If the jury find that the tract in question upon which the plaintiff claims a right of way has been needed for the convenience of the defendant and those who occupied the farm before her, and that the concurrent use of the track by the occupants of the plaintiff’s farm did pot interfere with such use or otherwise with the enjoyment of defendant’s farm, their verdict must be for defendant.” The trouble with this proposition is that it leaves out of view the character of the concurrent use. The use might be concurrent and the way might be needed by the defendant, but if the plaintiff entered upon it under a claim of right to use it, and did, in opposition to the will or without the consent of the defendant and her predecessors in title, continue in such hostile use for the requisite period, a title would be acquired which the law would protect. It was not error therefore to decline to give the instruction asked.
The eighth assignment raises a question of regularity in the exercise of judicial discretion. The verdict in favor of the plaintiff was for the sum of one hundred and fifty-eight dollars damages. Whether this should be set aside as excessive was a question for the trial judge. He solved the#question in a way that is unusual. He said in substance “ this verdict is too large for the time covered by the plaintiff’s claim; but if the plaintiff will release the damages accruing by reason of the obstruction complained of, for the time elapsing between the bringing of suit and the date of the verdict, nearly two years, we will leave it to stand as reasonable for the time so covered by it.” We are not disposed to interfere with this order because we are not satisfied that any positive injustice has been done by it, and because it is fairly a subject of discretion.
The eighth assignment is therefore overruled and the judgment affirmed.