4 Watts 294 | Pa. | 1835
The opinion of the Court was delivered by
—A number of errors have been assigned; and although very elaborately argued on the part of the plaintiff in error, we are of opinion that no one of them has been sustained. The only question presented by them of any importance, and which requires particular notice is, whether a survey of land, certified to have been made and returned by a deputy surveyor into the surveyor-general’s office, in pursuance of a warrant directed to him and put into his hands for execution, can be impeached after a lapse of thirty-three years from its return, by permitting parol evidence to be given, tending to show, that it was not made by his going on the ground and running and marking the lines as directed by law, but made by him in his chamber by protraction on paper.
It must strike the mind of every one, upon a moment’s reflection, that there must be a time when all the traces and marks of an original survey having been actually made on the ground, as well as all recollection in regard to its having been so made, will have disappeared and gone. And if the lapse of a certain period of time, and the quiescence on the part of every one during the continuance thereof, are not to supply all that, may be wanting, in this respect, to establish the validity of the suivey, every man’s title to his land will be growing worse daily, instead of better; and the consequence will be, that unless he take and continue the actual possession of it to the utmost extent of his boundaries on every direction, he will be in danger of losing it by its being granted and sold again by the commonwealth to a stranger. It is not intended to be even insinuated that the stale would do this knowingly; but we know that the state or its officers may be deceived, or misled by the misrepresentation of those who, being over anxious to acquire property, or from some oilier motive, may have deceived themselves as to the fact of the land having been previously surveyed and appropriated under a prior grant from the state. A sense of justice, therefore, if nothing else, would seem not only to require that such attempts should be discountenanced, but that every owner of land should be made perfectly secure in the enjoyment of his rights. But this is not all: the happiness and prosperity of the community, depending in a great measure upon Us peace and quiet, forms an additional reason why those salutary
In most of the cases before referred to, the presumptions which arise from lapse of time are but prima facie evidence of the fact, and liable to be rebutted by proof to the contrary. And beyond this, it is certainly very proper that they should not be extended, when it would produce either great inconvenience or injustice. Where, however, it is manifest that by making the presumption absolute and conclusive, corresponding as it were with the presumptio juris de jure of the Roman law, no inconvenience or injustice whatever can possibly arise or accrue to any one; but, on the, contrary, the interests of
Suppose, for instance, a survey returned as containing three hundred acres, when, in fact, it contains four hundred; and the patentee of it divides it into ten or more parcels, and sells them to as many different purchasers: how, let me ask, could the state undertake to correct the error by selling and granting the extra hundred acres in such case, without doing injustice to the purchasers of the patentee 1 I apprehend it would be very difficult, if not altogether impracticable, to effect ir. in any way, without injury to them ; but to permit any one at his pleasure to take out a warrant for the surplus, and to lay it off from the residue in such form and manner as might suit his wishes, is not admissible, perhaps under any circumstances that could probably happen.
The survey under which the defendant in error claims, was certified and returned by the deputy surveyor into the surveyor-general’s office in October 1794, calling for marks and boundaries, some of which are still visible on the ground, and describing the land by courses and distances in such manner, that there does not appear to be any serious difficulty in ascertaining its true location. After this it was assessed as unseated land, and as the property of those claiming it under the warrant in the name of Benjamin F. Young, and the survey returned thereon from 1803 to 1829. During this interim it was sold twice for the taxes assessed upon it; and redeemed in 1829, by the then owmers of the Benjamin F. Young warrant. So that the defendant in error and those under whom he claims, have held the land in dispute for thirty-three years : during which period.it was assessed as their land, under their title, in the name of Benjamin F. Young, and the survey returned thereon, without any exception being made to the survey by the state or any of its citizens; but, on the contrary, all acquiescing in and regarding it as a good and valid survey, and the claimants of the land under it and the warrant, as (he true owners thereof. To permit the validity of the survey to be called in question after such a lapse of time, under such circumstances, would not only be the height of injustice, but would be holding out. a temptation to the removal of landmarks, and the practice of fraud by such means, too strong, perhaps, to be resisted by every one. The reasons which induced the passage of the statute of limitations, making twenty-one years’ adverse possession of land by a mere trespasser, an absolute protection to him, and a bar against the claim of the rightful owner, were not .half as powerful and cogent, as those which exist in favour of the rule that after twenty years from the time that a survey of land has been
Judgment affirmed.