Gratz v. Beates

| Pa. | Jul 1, 1863

The opinion of the court was delivered,

by

Thompson, J.

After a careful study and examination of the elaborate presentation of this case by counsel for the plaintiffs in error, at bar and in their paper-book, we are not able to discover any element or complication of elements in it, which called for anything but the application of the most simple principles governing in trials of land titles, and to be found everywhere prominent in the books. We are of opinion that they were accurately administered on the trial, and we might safely leave the case on the lucid charge of the learned judge. We will do so, excepting only in the few particulars which we briefly notice below.

Certified connected drafts of adjoining surveys on file in the land office, are always evidence in this state; not as the foundation of title, but as aids in locating individual surveys: 14 S. & R. 372. That was their use here. But it is a ground of complaint that the draft was not properly certified. The - form of the certificate is not on the paper-books, nor is the draft itself before us. But we may infer that the certificate was in form, excepting only so far as the omission of the words complained of is concerned. The objection is that it was not certified, that the connected surveys had been “ carefully compared” with the originals on file. Of this it may be remarked, that there is no prescribed form of certificate in such a case, nor do I know that usage, amounting to law, has settled any. When, therefore, the certificate in terms is, that it is a connected draft of surveys on file, it was proper to receive the draft j it implied primd facie that it contained true copies.

Nor was it material that the number of tracts should be stated in the certificate. The diagram itself would show that, and could be counted as well by the jury as by the officer certifying. It was therefore of no consequence that it was in .pencil, unless on the ground of an unauthorized alteration. But as the insertion did not appear to have been done subsequently to the certificate, the presumption must be that it was done prior to it, and properly done by the officer certifying. There was therefore no reason for rejecting it on this ground.

It is always proper in controversies involving lines, corners, and boundaries of land, to receive in evidence what the owner may have said about them while owner. So on the same principle are deeds and articles of agreement, executed by such owner, recognising particular lines, corners, or monuments as boundaries, evidence. Sometimes such acts and declarations are admissions only; at others they may arise to the consequence of estoppels in pais; but as either they are evidence. The complaint on account of the receipt of such evidence was groundless.

Nor do we think that the learned judge erred, under the circumstances of the case, in leaving to the jury the question of the effect of the declarations of Jacob, and the acts and declarations of David Gratz; the latter made at different times, to one, at least, of the applicants for the Eurst warrant. They were to the effect that he would have nothing to do with the land; that he had enough; did not claim it under any of his warrants; and refusing to join in procuring a warrant, because he did not want the land: in addition, there were sales of land by articles of agreement and deeds excluding the tract in question. Were not these things superinducements and encouragement to the applicants to invest their money in the purchase of the warrant ? Indeed, it is possible that these facts might well have been submitted as evidence to raise an estoppel without the expression of an opinion to the contrary, with which the instruction was accompanied. If Jacob or David Gratz estopped themselves by acts or declarations from claiming the land as against the warrantees, of course those in privity with them as alienees or heirs, would also be estopped. But it is quite evident the case turned not on this point, but on a question of location.

Nor do we think it was error to decline charging, that the facts assumed in several points of the plaintiffs proved the position contended for. The reason for refusing was ample, if, indeed, a judge can ever be compelled to give his opinion on facts, excepting in case of a demurrer; it was, that there were other facts in evidence not noticed in the points, necessary to be considered; and he referred the whole to the jury, after asserting that the assumed facts would prove what was contended for, if it were not for those other facts. This was all he could be required to do.

The presumption, from lapse of time, that a survey was made as returned, stands, in the absence of marks on the ground, for proof of actual location. But this doctrine had nothing really to do with this case. The contest turned, not on whether the survey of the Elizabeth Harris warrant had or had not been made. That it had been was not disputed. Where the land lay which it did cover was the question. Did it cover the Robert Stewart warrant or the land in controversy ? The ascertainment of that depended on the survey and other facts. But if the survey and these facts showed that it covered the Stewart warrant, there was no presumption of law that it did not, because there was such a warrant in existence and located previously on the same ground. The land embraced by the survey is the appropriation, whether it confers title or not. The only cure for a mislocation of a warrant is by an order of re-survey. There seemed to be some confusion of ideas in the argument on this subject, and hence these remarks.

The law was properly administered by the learned judge, when, in substance, he told the jury that where a warrant (in-descriptive) calls for land on the waters of any particular stream, it is not intended thereby that the stream is necessarily to be embraced by the survey, or that it be on or adjoining it. It is within the intendment if it be located within the district watered or drained by it.

So in regard to the relative efficacy of evidence to be drawn from connected drafts and certified single surveys. Both species of drafts were used in this case, on the question of location alone, and both were evidence for that purpose. The learned judge expressed bis opinion that the connected draft did not show a location of the Elizabeth Harris warrant on the land in controversy, but referred to the separate drafts as superior evidence in case of a discrepancy between them and the connected draft. This was all he was bound, or had a right to do. As the first step in showing title, a connected draft is not evidence. Its only purpose is to group together surrounding and adjoining surveys, and by a presentation of the whole ground at one view, enable a court to judge of the location of the particular tract in controversy.

While on the subject of drafts, we ought perhaps to notice an assignment of error to the admission in evidence of what may be called a fragment or portion of a draft. The testimony was, that David Gratz had given to the witness, who was his agent to look after his lands and receive proposals from persons desiring to purchase, a connected draft of the land, containing also' ad- • joining surveys of other owners. It seems that, by time and accident, part of it became detached and lost; but the part containing the Gratz lands, or at least the Harris warrants, remained and was identified by the witness. It was competent to give this in evidence, after what the witness said in regard to the loss of a portion of it, to corroborate his statement that a draft had been given him; and for aught that appears in the case, this may have been all the purpose it subserved, as we do not hear of it again. But as the Harris surveys or warrants were all on it, it was evidence for the defendants, if it showed that the land in controversy was excluded, or presented anything by which it was necessarily to be excluded, it being a document furnished the witness by the ancestor of the plaintiffs, while owner. It was evidence, therefore, showing his admission as to the extent of his claims. Both on the ground of an admission and on the theory attempted of an estoppel, it was evidence. It was for the jury to say what weight it ought to have in its mutilated state. The court could not on any principle exclude it.

The extent of the improvements was evidence also on the question of an estoppel. The defendants had a right to make out this theory of their case, if they could, and this was part of it. I therefore do not conceive that the evidence was inadmissible under such circumstances.

We see nothing in any part of the case that calls for correction, or that raises a doubt of the accuracy of the rulings of th§ learned judge below.

The judgment must therefore be affirmed.