Bushey v. South Mount. M. & I. Co.

136 Pa. 541 | Pennsylvania Court of Common Pleas, Cumberland County | 1890

Opinion,

Mr. Justice Williams :

The several errors assigned, in this case, have been properly-treated by the learned counsel for the appellant as presenting but two questions. The first of these is over the sufficiency of the plaintiff’s title to sustain a recovery upon its own strength. The second relates to the effect to be given to the legal presumption arising after the lapse of twenty-one years from the return of the survey of the Blackford, which is older than the plaintiff’s survey.

The land in controversy is unseated. The plaintiff undertook, therefore, to show title out of the commonwealth, and to trace that title through a line of conveyances from the patentee to himself. For this purpose he offered the application of William Morrison, dated on the 22d January, 1848, for one-hundred acres of land in Dickinson township, Cumberland county, described as adjoining the Blackford on the west, the Duncan on the north, and the Adams county line on the south; also the warrant, issued in pursuance of the application, authorizing the survey of the land applied for. These were admitted without objection. He then offered to show that Lamberton, the deputy surveyor, now deceased, made a survey of the land under the authority of the warrant; that he returned the survey so made into the land office; and that the original return has been lost, and cannot be found after careful search by the proper officer. To show what the return was, he offered what purported to be a copy of it, made by Lamberton for his employer, which has passed with the title through the hands of the several holders down to the plaintiff. He also offered the patent from the commonwealth to Gitt for the same land, based upon and reciting the' warrant to Morrison, the survey made under its authority, and the vesting of Morrison’s title in the patentee. All this was objected to; so much as precedes the offer of the patent, because it was insufficient to show that a survey had been made and returned into the land office, and the patent was objected to on the ground that it did not pass the title of the commonwealth without proof of a previous survey and return by the deputy surveyor.

The first of these objections went rather against the effect of the evidence than its admissibility. The question for the court was, whether the several facts embraced in the offer were competent to go to the jury, in support of the plaintiffs position that the survey had been regularly made and returned. If competent, their sufficiency was a question for the jury. But if the incompetency of the alleged copy of the return should be conceded, we do not see why the patent was not entirely competent. A patent is simply the deed of the state to its grantee. Its execution and delivery are an admission that all previous proceedings have been had, and all necessary formalities have been complied with. In Balliot v. Bauman, 5 W. & S. 150, this question was distinctly ruled, and the principle stated by Sergeant, J., thus : “ The patent conveys the full legal title of the state, and is, as to her, a merger of the previous proceedings, and a waiver of informalities; it is, moreover, full and express notice to every person whatever that the land has been granted away, and is not vacant.” The patent is therefore prima facie evidence of title and of survey: James v. Betz, 2 Binn. 12; Whitmire v. Napier, 4 S. & R. 290; Smith v. Vasbinder, 77 Pa. 127; Olewine v. Messmore, 128 Pa. 470. As the case stood when this offer was made, the plaintiff had a right to lay his patent before the jury as proof, prima facie, that the title of the commonwealth to the land described in it had passed regularly to the patentee, whose title he proposed to trace to himself. The first question, presented by the appellant, must therefore be answered in the affirmative.

The plaintiff did show a title in himself good, prima facie, against the commonwealth, and therefore good against all comers who could not show an earlier or a better title. His title was therefore sufficient to sustain a verdict, and he had a right to recover upon it unless the defendant could overcome it with a better one. The patent, though prima facie, was not conclusive, and the defendant had the right to controvert the effect of its recitals : Burd v. Seabold, 6 S. & R. 187; and show that the land was appropriated before the patent was issued, or the application of Morrison made. In Kelly v. Graham, 9 W. 116, the plaintiff put his patent in evidence. The defendant, in order to overcome this prima facie case, put in the warrant and survey on which the plaintiff’s patent was based, and showed that the land in controversy, though covered by the patent, was not embraced in the survey. He then showed a prior right in himself by actual settlement on the land. This showing overcame the prima facie case made by the patent, and enabled the defendant to hold the land thus improperly included in the plaintiff’s patent. In Payne v. Howard, 107 Pa. 579, the plaintiff claimed land not embraced in his patent, and the burden of proof was on him to show that the land was covered by his survey, and omitted from his patent by mistake. Failing to make the showing necessary to enable him to recover against his own patent, he was properly nonsuited. The trouble was that he, and not the defendant, had to take up the burden of proof, because his patent did not cover the land he claimed. If it had covered the land, he could not have been nonsuited, and the defendant would have been compelled to assume the burden of proof.

We come now to the second question, the effect of the legal presumption arising from the return of the survey of the Black-ford. The warrant for the Blackford was issued in October, 1792, returned on the 6th March, 1821, as surveyed on the 8d January, 1795, and the patent was issued in February, 1821. As the Morrison warrant was not issued until 1848, it is clear that if the Blackford covered the ground the plaintiff had no title. This was the real question in the case. How was it to be determined? By locating the Blackford on the ground. If its lines embraced the land in controversy, the defendant was entitled to a verdict; if they did not, then the plaintiff’s title was not disturbed, and he could recover upon it. The defendant undertook, accordingly, to show the location of the Blackford.

If the return of survey had called for no marks on the ground, but for the lines of adjoining warrants, then the legal presumption on which the learned counsel for the appellant relies would have prevailed, and the location of the surveys called for would have been a location of the Blackford; but the official return calls for marks on the ground, and these are the highest evidence of the location of the lines. It is true that, after the lapse of twenty-one years, the law presumes that the survey was made as returned. In other words, the law presumes that the officer made his return in accordance with the facts, as his duty and his oath of office required. Having made return that he ran certain lines for the purpose of locating the warrant, the legal presumption makes that return conclusive that he did run them as he has stated. But where are the lines so run ? This is a question of fact to which the legal presumption cannot apply, until some mark of the survey has been actually discovered that may serve as a starting point. If the marks called for at any corner can be found on the ground, the legal presumption, fixing itself upon this corner, will inclose the entire tract, by running the courses and distances laid down in the official return. If the marks called for are the lines of older tracts, which the surveyor adopted as the lines of his survey, then the older tracts must be located and the position of the adopted lines established, at the outset. When this is done, the legal presumption affirms that these lines were adopted as the exterior lines of the tract which calls for them as adjoiners, just as the deputy surveyor affirmed by his return; and the fact that such location changes the courses and distances, or the shape of the tract as returned, will be disregarded. If the return calls for marked trees or other fixed monuments on the lines and at the corners of the tract, these marks, when found, locate the tract without regard to calls for adjoiners, for they are the proofs of the actual presence, the official footprints, of the deputy-surveyor on the ground. When some of them are found, the legal presumption supplies the loss of others, and incloses the tract. This subject was discussed, and the authorities collected, in Grier v. Coal Co., 128 Pa. 79, and in Bloom v. Ferguson, 128 Pa. 362, and it is not necessary to repeat what was there said.

When we apply the rule to this case, it will be seen that the legal presumption was not conclusively for or against the defendant in this case. The Blackford tract, under which the defendants claimed title to the land in controversy, was bounded on the north by the Duncan, and on the south by the county line. It called for the Thornburgh on the west, and for a chestnut at its southwest corner. The defendant’s theory of the location of the division line between the Blackford and the Thornburgh rested on the Dobson improvement and the official distances. Establishing the southwest corner of the Blackford in this manner, and running east two hundred and eighty-five perches, as called for by the return of survey, and then turning north, they would embrace the land covered by the Morrison within their own lines. The plaintiff’s theory, on the other hand, was that the chestnut, at the southwest corner of the Blackford, was actually on the ground fifty rods further west than the corner assumed by the defendant. Starting from this corner and running out two hundred eighty-five rods, he claimed to find the pine called for as the southeast corner of the Black-ford, and turning thence north he claimed to find an original east line about fifty rods further west of that claimed by the defendant. The location of the Blackford, therefore, and the plaintiff’s right to recover, depended on which of these theories should be found by the jury to be the true one. If the chestnut at the southwest, and the pine, called also the Slusser corner, at the southeast, were the original corners of the Blackford, marked on the ground and returned to the land office as the corners of the Blackford, they settled the question of location in favor of the plaintiff. The legal presumption, attaching itself to these established monuments, would, in the absence of other marks, close the survey by running the official courses and distances from them. If these were not marks of the original survey, then the distances and recitals in the return would lead to the conclusion that the location resting on the Dobson improvement was the proper one.

It would be difficult to imagine a clearer question of fact than that over the original character of the chestnut and the pine corners. It was peculiarly a question for the jury, and it was carefully submitted to them by the learned judge of the court below. If they have reached a wrong conclusion, the remedy was in the court below. There was evidence before the jury tending to show the original character of these corners, and fixing the east line of the Blackford in accordance with the theory of the plaintiff, which, if believed, was amply sufficient to justify their verdict, as the case appears on the paper-books. As the question was properly submitted, the errors assigned are not sustained, and

The judgment is affirmed.