Jackson v. Lambert

121 Pa. 182 | Pa. | 1888

Opinion,

Mr. Chief Justice Gordon :

As a matter of law this is a very plain case. The plaintiffs claim the land in dispute by virtue of a warrant issued by the commonwealth of Pennsylvania on the 11th day of March, 1785, to one Nathan Fields, Jr., on which there was a survey bearing date April 8, 1785. This survey as returned to the Land Office purports to enclose 410 acres, 142 perches and allowance, and to be bo.unded on the north by Richard Thomas, south by vacant land, east by David Lownes, and west by Thomas Poultney. The only question we have to deal with is one of location, and, this being one for the jury, if it were properly submitted puts an end to the plaintiffs’ case, but if it was not so submitted, there must be a re-trial.

It is scarcely necessary for us to state that if the original marks of the survey, or any of them, are found on the ground, they must govern; but if they are wanting, then resort must be had to adjoiners. The plaintiffs contended that no marks, bearing the date of 1785, having been found on the ground, resort must be had for location to a block of adjoining surveys, which, though purporting to have been surveyed in 1784, the external lines thereof date back to 1777. Of course, the hypothesis here proposed may be adopted in case no governing marks are found for the Fields survey, but not otherwise. Just here we may be permitted to say that as vacant land is called for on the south, in the absence of fixed lines and corners, or controlling adjoiners, the lines of the N. Fields, Jr., running south 30 west, must have their full measure, for in such case the presumption would be strong that the surveyor did not intend that his lines should fall short in that direction. The question then, and the material one, narrows itself down to a south line which, as we understand from the evidence, is found on the ground: Was-thisline run in the fall of 1784, or in the spring of 1785? for in either case blocking would give the same result. If the former were the fact, then it is not the line of the tract in controversy, unless there is something to show that it was adopted as such; if, however, the latter be the correct date, then the presumption would be that this is the south line of the Fields tract. How then, shall this question be determined ? We know of no other method for its solution than that proposed by the plaintiffs’ witness, C. D. Eldred. He says : “ A line of 1784 run in the fall, and one in 1785, before the growth of that year, would count the same date precisely ; but from the actual work of surveyors done, and returns made by them, it is shown that this line continued, and there was a block of surveys of 1784 located on it further west, therefore there was such a line run in 1784.” This answer on motion of defendant’s counsel was stricken out, and in this we cannot but think there was error. We must therefore sustain the second and third assignments.

Nor can we understand why Mr. Eldred, the surveyor, who was acquainted with the surveys of 1784, was not allowed to give his opinion as to the location of the Poultney tract. Because it was claimed that this tract was one of a block of surveys, it was somehow supposed that he could not be allowed tcqgive his opinion as to its location, and this for the singular reason that it would be a legal conclusion. But the conclusion of a surveyor, derived from his knowledge of lines and corners found on the ground, is certainly one of fact and not of law. The question regards location, which is always one of fact, hence, one about which a surveyor who is properly instructed concerning the facts, may always give his opinion : Farr v. Swan, 2 Pa. 245 ;, Northumberland Coal Co. v. Clement, 95 Pa. 126.

There was also error in the affirmance of the defendant’s '23d point, which assumes that the fixing of the location of the Thomas Poultney would also conclusively fix that of the tract in controversy. The survey for the Poultney was made in December 1784, hence may well be located by the line of that year, but, as we have seen, it does not follow that that line is 4he southern line of the Nathan Fields, Jr. Adjoiners are very important in determining the location of junior surveys, and, in the absence of original marks on the ground, may be conclusive ; but, there being no call for adjoiners on the south of the tract in controversy, it is clear that in that direction it cannot be thus limited. It is true, the separate draft of the Fields calls for the Thomas Poultney on the whole length of its west line, and so far, the location of that tract is important, but it by no means fixes conclusively the southern line of the former. This answer then, making, as it does, the location of the Poultney conclusive of that of the Nathan Fields, Jr., must be treated as erroneous. The remaining assignments are not sustained, but, for the errors which we have pointed out, this case must be returned to the court below for re-trial.

Judgment reversed and new venire ordered.