144 Pa. 549 | Pennsylvania Court of Common Pleas, Clearfield County | 1891
Opinion,
This case was here in 1889, and is reported in Bloom v. Ferguson, 128 Pa. 362. The controversy then was, as it now is, over the boundary between the Steiner and Scott surveys. The eastern terminus of this line, the white oak, the common corner of these surveys, is on the ground, but the line westerly from the white oak is not. The question presented is, how shall this line be located ? Shall it be done by means of the original work on the lines of these surveys, and the returns of the deputy surveyor, or by marks made for other tracts, which were neither adopted, nor referred to in any manner, as monuments of the Steiner or the Scott, by the surveyor who located them? We held when the case was here before that the work made for and peculiar to these surveys was sufficient to locate them, and to fix the common boundary between them, and that the rules applicable to detached surveys should be applied for this purpose. It is now conceded that as the case was then presented the rule laid down was correct; but it is urged that, as now presented, a different question is raised, and a different rule should be applied. The difference contended for is that the testimony now shows that the Steiner and the Scott and their adjoiners on the west, the Frey and the Slough, are members of a block of sixty-four surveys ; and for that reason
The public lands were sold by the state in a manner that is well known to the profession. A person desiring to buy made his “ application ” in writing, stating what land he wished, and as nearly as possible where it was located. On receiving this application, a warrant issued from the land office, directed to the proper deputy surveyor, authorizing and requiring him to survey and lay off for the applicant the land applied for. This was taken to the deputy, who went upon the land, made a survey of the tract in obedience to it, and then returned it, with a copy or description of the survey so made, to the land office. When this return was accepted, and the land paid for, the state made its deed, called a “ patent,” conveying the tract to the applicant or his vendee. When more land was desired than could be included in one tract, the person wishing to buy made applications in the names of the members of his family, his servants, and employees, as well as his own; thus securing a batch of warrants at one time, which were at once transferred to him by the nominal applicants. When this happened, the deputy surveyor would sometimes locate the entire batch of warrants in a body, as one tract, and such a body of surveys, made at one time, for one owner, was called a block. If the surveyor discharged his duty, and marked the lines of each tract, the word “ block ” was sometimes used to describe the body of lands held by one owner, but in such cases the location of the tracts comprising the block was made on what may be called the individual system. If only exterior lines of the block were marked, the location of the separate tracts was practicable only upon what we have called the block system.
It seems to have been at one time doubted whether a mere enclosure of a body of tracts by an exterior line was a good
The next question raised upon these imperfect surveys was whether an interior tract, which was without any lines or marks of its own, could be located at all. The opinion was entertained by some land lawyers that it could not be, and that, as in the case of a detached survey, for which no lines could be found, the land was open for another appropriation. This court distinguished between the detached survey, without marks, and that which was in the interior of a block, holding that the latter might defend against a junior warrantee upon the outer lines of the block to which it belonged, because these showed an appropriation of all the land within them, leaving nothing that could pass under the junior warrant. For this purpose, the marks on the block lines became a monument of the individual survey, not to fix its boundaries, but to show an appropriation of the larger body of which'it was part. In Eister v. Paul, 54 Pa. 196, the contest was between a junior warrant with lines on the ground, and a senior warrant located as part of a block. The holder of the junior survey denied that the senior warrant had been actually executed by a survey of the land called for; and the holder of the senior warrant was driven to fall back upon the exterior lines of the block in which it was, to show an appropriation of a larger body, including his own survey. For this purpose, it was said that the marks on any part of the block lines belong to each tract in the block; for, by locating the body of land enclosed by them, they necessarily protect each and every part of it from a second appropriation.
The effect of a mere external enclosure was next raised between vendees of the owner of the block, holding distinct tracts. Diagram No. 1 shows a block containing thirty tracts, having an external enclosure, but no interior or tract lines. How are these to be fixed? If no tract corners are marked on the block lines, they must be run in accordance with the returns of survey. If corners are to be found on the block lines, these will control the courses and distances given in the returns, and the interior lines must be protracted across the block in accordance with them. ' This is shown by diagram No. 2, in which dotted lines show the interior or tract lines protracted from the marks on the exterior lines of the block. If these marks were not made upon a careful and accurate measurement of distances, they will change the course of every tract line and the form of every survey, as illustrated by diagram No. 2. But in such blocks this system of location is absolutely necessary to prevent a failure of title to lands which the state has fairly sold, for which it has been fully paid, and which it has formally conveyed by its patent resting on the preliminary application, warrant, and return of survey. It is nevertheless a wide departure from the established mode of making or locating surveys, and was devised to save the title of a purchaser from being defeated by the failure of an officer to discharge his full duty. For this reason the circumstances under which
Turning now to the case before us, we have a question of boundary between, not two interior tracts without lines, but two well-located surveys. The work that is still found on the Steiner and the Scott is shown by diagram No. 3. The two tracts are practically enclosed by that work, although a part of the western line is not on the ground. What remains to complete the enclosure of .both is to separate them by a line running westerly from the white oak, a common corner, thoroughly identified. As there are no marks on this line to override the return of survey, it must be run from the white oak, according to its official course, to an intersection with the west line. • Diagram No. 4 shows the original work on the Slough and the Frey. These are practically enclosed by their own established lines and corners. They are returned as adjoining the Steiner and the Scott. Their eastern line is open, but its place is fixed by the work on the ground. Diagram No. 5 places the Slough and the Frey in their proper positions adjoining the Steiner and the Scott, and shows that they do not adjoin as they were returned. It also shows the work on the Steiner that is peculiar to that tract. Now, it is clear that no one of these four tracts can be located by the marks on the lines of the block of sixty-four surveys to which they belong,
The learned counsel for the appellant contends that the four tracts must have a common corner, because the returns call for one, although it is conceded that it was never on the ground. To locate this he would run a diagonal line from the white oak to the sugar, and where this line intersects the. line southerly from the work on the west line of the Steiner to the gum, he would plant a post for the common corner. This location would answer one call of the returns of survey, viz., the call for a common corner. It would disregard the return as to the form of each of the four tracts, as to the north and south line of each being parallel, and as to the official course of the line westerly from the white oak, and that easterly from the sugar. As between two proposed methods of location, where the work on the ground will permit, that should be preferred which fills
To recapitulate; the argument in favor of treating these four tracts as a block rests on the return of survey, which makes them adjoin along the entire breadth of each, and gives them a common corner at the post. This return is, however, discredited by the work on the ground, which shows that they do not adjoin as the return indicates, and that they cannot have a common corner without doing violence to the courses of the division lines, to the relation of these lines to those north and south of them, and to the form of all the tracts. The argument against treating them as a block may be stated thus: (1) There is no proof that they were located as a block. (2) The work on the ground shows that the Steiner has marks peculiar to itself, not common to or in any manner affecting the location of the Frey or the Slough. (8) The Steiner is well located, one half mile northerly of its returned location, by marks which, as between it and the Frey, are peculiar to it, and are inconsistent with the assumed block location. (4) The individual location not only gives effect to the work on the ground, but to a majority of tbe official calls in the returns of survey.
So much importance is attached by the appellant to the sugar, the common corner of the Slough and the Frey, that it may be desirable to consider briefly its position and significance. It is conceded that it is not called for by, or referred to in the return of survey of either the Steiner or the Scott. If it is a monument of the Steiner therefore, it must be made so by the
The rules pertaining to block locations are resorted to where an individual location cannot be shown, to fix the lines and save the location of a tract; not to change the lines or distort the figure of a tract well located as an individual or separate survey. If, therefore, marks of the original survey are found, as in this case, on three sides of a tract, and some of these marks are peculiar to the tract, and are not common to the other tracts alleged to form part of the block, an individual or separate location is established. The position of an unmarked corner or an open line will be fixed by the aid of the legal presumption that
The assignments of error are not sustained, and
The judgment is affirmed.