Improvement Company v. MunsonImprovement Company v. Munson
seated the case, and delivered the opinion of the court.
Rules of decision in the courts of the United States, as well as the forms and modes of process; are very largely derived from- the laws of the States as construed- by the decisions of the State courts, in cases where they apply, except where the Constitution, treaties, or statutes of the United States otherwise require or provide.
Controversy having arisen between the parties in respect to the title to the tract of land described in the record, the
Title to the premises in controversy is deraigned by the plaintiffs from one Benjamin Bonawitz, whose claim to the same is- supposed to be established by the following documentary evidences of title, as more fully set.'forth in the bill of exceptions: (1.) An application to the land office of the State, dated December 14th, 1829, made by him for sixty-six acres of unimproved land in Lower -Mahantongo Township, Schuylkill County, bounded as therein described. (2.) Warrant from the State, of the same date, to the applicant for the land described in the application, as fully set forth in the record. (3.) Return of survey made by a deputy surveyor of the county, June 1st, 1829, in pursuance of the warrant, as duly returned to the land office, and accepted the fifth of March of the succeeding year, as follows, to wit: Situate in Lower Mahantongo Township, Schuylkill County, containing sixty-six acres an<| one hundred and three perches, and allowance of six per cent., returned this third day of March, 1830, in pursuance of a warrant dated the 14th of Decembei’, 1829, to Benjamin Bonawitz. Superadded to the return is the following statement, that the lines and corners of the survey were made on the eighteenth of June, 1829, in pursuance of a warrant dated the seventeenth of March of that year, granted to the same person, a return on which was made, but was rejected on account' of the survey not answeriug the description of the warrant.-(4.) Sundry
mesne
conveyances from the warrantee and sub
Appended to the statement that those conveyances were introduced is the admission of the counsel for the'defendants that Schuylkill County was erected out of Berks County, and that Porter Township, where the premises are situated, as alleged in the declaration, was created out of Lower Mahantongo Township, which is the name of the township where the location was made under the warrant, survey, and return.
. Documentary evidences of title were then introduced by tine defendants to maintain the issue on their part, as follows: (1.) An application, dated July 1st, 1798, made by Jacob Yeager to the land office for four hundred acres of land adjoining land granted ,the same day to William Witman, Jr., in the county of Berks. (2.) Warrant from the State, dated July 1st, 1793, to Jacob Yeager for the same land, as more fully set forth in the bill of exceptions. (3.) Return of survey on the warrant-by the deputy surveyor of Berks County, on the tenth of July, 1794, of four hundred and forty acres and sixty-four perches of land and allowance, situate in Pinegfove Township, in the county of Berks, returned and accepted August 26th, 1794, as therein ce tiffed. (4.) Sundry conveyances were also offered in evidence by the defendants, tending, as they contend, to deduce title to, the said corporations,.or one of them, to the land located and surveyed under the warrant to Jacob Yeager, which includes the land embraced in the warrant an,d survey under which the plaintiffs deraign their title.
Rebutting evidence was then introduced by the plaintiffs: (1.) Certified copies of eighteen applications, dated July 1st, 1793, to the land office, for four hundred acres each, the leading one being in the name of James Silliman, and one of the number being the application by Jacob Yeager given in evidence by the defendants, as follows: Jacob. Yeager applies for ..four hundred acres of land adjoining land this day granted to William Witman, Jr., in the county of Berks. (2.j Certified copies of eighteen descriptive warrants, issued
By that certificate it appears that diligent and careful search had been made in that department for proceedings on that caveat, and the proper'officer certifies that he dobs not find that any citation was ever applied for, of that any’ proceedings or action was ever had. by the board of property upon or concerning the same, which remains recorded in the office ,of the surveyor-general. (6.) They also pffered in evidence a map, showing the two locations of the Jacob, Yeager tract, the first by Henry Vanderslice, and the second by William Wheeler, both deputy surveyors of Berks County. (7.) Both sides admitted that Henry Vanderslice was a deputy surveyor of Berks County, and that the location of the Jacob Yeager tract as made by.him was made in the county of Northumberland, within one mile of the line between that county and Berks County, ánd that the second location of the warrant by William Wheeler was made in Berks County, about twenty-two miles distant from the survey made by the other deputy surveyor.
Responsive to the rebutting evidence given by the plaintiffs the defendants then introduced certified copies of returns of surveys made by William Wheeler, July 10th, 1794, upon the Jacob Yeager -warrant, and upon three others of the
Neither party desiring to offer, any further, evidencefthe presiding justice proceeded to charge the jury. Speaking of the warrant and survey introduced by the. plaintiffs, he.fold the jury that? the court- saw no defect in the plaintiffs’ title under that.warrant and survey, ádding that the.only claim which the défendauts' have set up is under warrants . located several miles' from ,'the- land, in controversy by surveys returned .’and accepted and to that instruction no exception was taken by the defendants. But the coui’t also told the jury that “no subsequent-official survey of the land under those warrants,■ without a warrant of survey or order of the board of property, was- authorized.” Therefore, said the justice, if the jury take the same .view pf the evidence as the court, the verdict should be for -the plaintiffs, and the jury followed that instruction, and the defendants excepted.
Two errors are assigned* as follows: (1.) That the court erred in charging the jury that no subsequent official survey of the land under those warrants, without a warrant of survey or order of the board of property, was authorized. (2.) .That the court erred in telling the jury that if they took the same view of the evidence as the court the verdict should be for the plaintiffs, as the effect of the instruction, as the defendants contend, was to withdraw from the jury -the consideration of the question whether or not the‘board of property might not have issued an order for a second survey of the tract, the evidence pf which had been lost.
Much discussion of the first error assigned is unnecessary, as the defendants admit.that the law is well settled in that State-that a warrant-, where it appears that a survey has been ordered upon it and made, returned, and accepted, is
functus officio,
and that no title under a second survey can be made unless such second survey was ordei’ed by, the board of property, which it is admitted is not directly proved in this case.
Doubtless the official surveyor may correct his survey while the warrant remains in his hands, but his.control over it ceases after his return has been made to the land office, and the decisions are direct that no second survey thereon without an order for that purpose is of any validity whatever, either against the State or any other claimant, or, as Justice Strong said, in the case of Hughes v. Stevens. ‡ A second survey without air order for it amounts to nothing, as it is merely an unofficial act, which cannot give the warrantee any rights either against the State or any other claimant of the tract. §
2. Whether the Circuit Court erred, ms alleged in the_ second assignment of errors, depends upon the disputed fact whether there was any evidence' in the case which would have warranted the jury in finding that an order for a second 'survey was ever granted by the-board of property, as it is settled law that it is error to submit a question to a jury in a case where there is no evidence upon the subject.
It is clearly error in a court, said Taney, C. J., in
United States
v.
Breitling,
ǁ
to charge a jury upon a supposed or con
Very strong doubts are entertained whether the construction, of the language employed by the judge, assumed by the defendants, is the correct construction of the .same, and
Lost instruments may be proved by parol testimony where it is shown that the instrument once existed and.is lost, and the proof of loss, where it is first shown that it once existed, may consist of evidence showing-diligent and unsuccessful search .and inquiry in the place where it was usually kept or in which it was most likely to be found, if the nature of the case admitted of such proof.
*
Presumptions of law are frequently absolute and conclusive, as they determine the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. Such presumptions arise in respect to the intermediate proceedings in cases where lands are sold under licenses granted by courts to executors, ad
Surveys, it seems, were sometimes made in.that State by deputy surveyors in early times without going upon the land, by plotting the chart and marking the lines and corners in their offices, and those surveys are called “ chamber surveys,” but-such surveys were forbidden by the act of the State legislature of the eighth of April, 1785, which enacts that every survey hereafter to be returned into the land office upon auy warrant' issued after the passing of the act shall be made by-actually going upon the laud and measuring the same and marking the lines.
†
Decided cases are referred to by the defendants where it is held that in controversies respecting title's under those surveys there arifees a conclusive presumption, after the lapse of twenty-one years from the return of the survey, into the land office, that the survey was regularly made upon the ground as returned and required by law.
‡
Evidently the cases referred to must be regarded as establishing a rule of property in that State,
Attempt is made in this case to supply by presumption a, matter absolutely necessary to give legality to the survey and without which it is a nullity and amounts to nothing, but is held to be as worthless as if there had never been any warrant at all. Viewed in that light, as it must be, it is clear that the case falls within the decision of the court in the case of
Wilson
v.
Stoner,
†
which, indeed, is decisive of the cofitroversy. It was there decided that a survey is not evidence without first showing an authority to make it, or proving that such authority existed and was afterwards lost. Possession in that case was proved for upwards of thirty years under a survey in the handwriting of an assistant deputy surveyor, indorsed “ copied for return,” with a memorandum by him that there was authority to make it, but the court held that those circumstances could not be received as affording presumptive evidence from which the jury might draw the necessary conclusion, as matter of fact, that even if the existence of the location was admitted, some account of its loss would have to be given before secondary evidence of its contents could be received, as, without‘that the survey’ would be inadmissible for want of a, previous authority. .Unless'it can be shown that the rule laid down in that case is not good law, it is quite clear that the second error, assigned must'alsobe overruled, as the defendants did not prove'possession for any considerable time, or occupation of the premises, nor the making of any improvements upon the same,
Judgment affirmed.
Notes
3 Sergeant & Rawle, 346.
Purdon’s Digest, 9th ed., 619, pls. 7 and 8.
Drinker
v.
Holliday,
Goodman
v.
Simonds, 20 Id. 359; Dubois
v.
Lord,
Ryder v. Wombwell, Law Reports, 4 Exchequer, 39; Law Reports, 2 Privy Council Appeals, 335.
Jewell v. Parr, 13 C. B. 916; Toomey v. L. & B. Railway Co., 3 C. B., N. S. 150; Wheelton v. Hardisty, 8 Ellis & Blackburn, 266; Schuchardt v. Allens, 1 Wallace, 369.
1 Greenleaf on Evidence, 2d ed., § 558.
1 Greenleaf on Evidence, 12th ed., § 20; Hathaway v. Clark, 5 Pickering, 490; Brunswick v. McKean, 4 Greenleaf, 508.
Purdon’s Digest, 9th ed., pl. 65.
Mock
v.
Astley, 13 Sergeant
&
Rawle, 382; Caul
v.
Spring,
Deal
v.
McCormick, 3 Sergeant & Rawle, 346; Oyster
v.
Bellas,
9 Sergeant & Rawle, 39.