Kennedy v. Lubold

| Pa. | Jan 6, 1879

Chief Justice Agnew

delivered the opinion of the court, January 6th 1879.

These two cases were argued together. They seem to have been tried upon the doctrine of leaving first principles and going on to perfection. But old surveys are not to bo so tested. Most perfect in the beginning they are constantly undergoing change and decay, until by wind, fire, rottenness, and the acts and frauds of men, their evidences lie only in memory and hearsay. Hence when the learned judge said of the acts of the surveyors, who forty years before wont upon the ground, ran the lines, blocked the trees, counted the growths, found original marks, and pronounced the hickory the numbered corner of donation lot No. 1260, it was mere hearsay, he hardly believed it evidence, admitted it with reluctance, and it was weak evidence in determining, he clearly misled the jury. The reverse is true — the evidence was strong, and ought to prevail unless clearly rebutted, by showing either a mistake of the witness relating the facts, or error in the surveyors making the declaration that the hickory was the numbered corner and the white oak opposite an original corner. Herrington in 1837, and Fenton in 1888, were engaged in professional acts, the latter locating the warrant officially, and under his oath of office. The declarations as to the corners when found, blocked and counted, were a part of the res gesta, and so far from being doubtful evidence were competent and always admitted when the transaction is old and the surveyor dead: Nieman v. Ward, 1 W. & S. 68; Caufman v. Congregation, 6 Binn. 59" court="Pa." date_filed="1813-06-09" href="https://app.midpage.ai/document/caufman-v-presbyterian-congregation-of-cedar-spring-6313740?utm_source=webapp" opinion_id="6313740">6 Binn. 59; Hamilton v. Meanor, 2 S. & R. 70; Buchanan v. Moore, 10 Id. 275; Dawson v. Mills, 8 Casey 302 ; Gratz v. Beates, 9 Wright 495. The case of Bender v. Pitzer, 3 Casey 333, was one of different character, and the language of Judge Knox inapplicable to this.

There was also an inaccuracy in the judge’s reference to Long’s testimony. He remarked, “ Long says it was an original corner. He says it was the original northeast corner of 121, and of course the true northwest corner of 1260.” There were two inaccuracies in this statement liable to mislead. And first, Long found no hickory, either marked or not marked, not even the remains of one, .but he found a white oak blazed on the north and south sides, with one mark each. He said he would call it an index tree (that which surveyors usually call a pointer). But he found what would be only the evidence of a line running north and south, and .not a marked corner or its pointer. He might think the hickory or northwest or numbered corner of No. 1260 once stood near, but this would be opinion only, and he did not say, as the learned judge inferred and told the jury, to wit: “ He says it was an original corner.” A second and more hurtful inaccuracy was the statement that being the original northeast corner of No. 121, it was, of course, the true northwest corner of No. 1260. This might be so if the corners were identical, but it-was not necessarily, and the statement conveyed the impression that the numbered corner (the northwest) was subordinate to the northeast corner of its adjoiner.

The settled doctrine of the donation moneys is that the numbered corner is the ear-mark of the tract to which it belongs, and controls all the other marks on the ground: Smith v. Moore, 5 Rawle 348" court="Pa." date_filed="1835-07-01" href="https://app.midpage.ai/document/smith-v-moore-6314600?utm_source=webapp" opinion_id="6314600">5 Rawle 348; Dunn v. Ralyea, 6 W. & S. 475; Greely v. Thomas, 6 P. F. Smith 35. This docti'ine follows the direction of the Act of 24th March 1785, 3 Sm. Laws 292, that “ on the northwestern corner thereof each lot shall be marked in Roman figures the number of the lot, and if the said corner should be a post, then the said number to be marked on a tree in said lot most contiguous thereto.” The act also directed that the lots should succeed each other in numerical order, and a draft of the whole be made, noting the numbers on each, and that the draft should stand in lieu of recording the patents which were directed to be noted on the drawn number thereon. Hence Chief Justice Gibson said, in Smith v. Moore, supra, “ the lot having received a name of baptism to distinguish it from all the rest, its individuality could not be destroyed or its name changed by a blunder in the return, and when there is a discrepance between the numbered corner and the boundaries returned, the former must govern.” For the same reason it was held, in Dunn v. Ralyea, supra, that No. 1031, found marked on the ground out of order, and where No. 1029 was called for on the general draft, must prevail over No. 1028. If, therefore, the numbered hickory seen by Herrington and Fenton in 1837 and 1838, was the true numbered northwest corner of 1260, the judge erred in saying .that the white oak proved by Long as the northeast corner of No. 121, was the true northwest corner of No. 1260.

The learned judge also fell into error in refusing evidence of the number of acres containéd in defendant’s claim. He claimed a corner as the northeast corner of his tract, fifty-six perches east of the hickory. This would make a very large difference in the area or quantity of his land. Quantity is a circumstance of slight, often of no weight in a question of title, but it may have a marked effect where the question is one of boundary. If there be two lines, one corresponding with the quantity of land in the deed, and the other largely in excess, the inference would have weight in determining the true line, especially when strongly assisted by other evidence.

He erred also in rejecting the rebutting evidence contained in the third, fourth and fifth specifications. These offers of the deed from the Strattons to Lubold, the proceedings in partition of J. Stratton’s real estate, and the deed from Reynolds to Wagoner, were for the purpose of showing that the defendants in their own title recognised the boundary claimed by the plaintiffs to be theirs. This was both rebutting and strong evidence. It was rebutting, for when the plaintiffs had exhibited their survey, warrant of acceptance and patent, and proved that the survey applied to the land in controversy l)y the metes and marks on the ground, they had shown a good title to recover. What defence ■would be made to this was not to be anticipated as a matter of law. Whether the defendant would rely oil an adverse title, or on possession alone, or on a question of boundary, the defence he would set up alone could show'. He chose to rely on his possession and on a question of boundary, alleging that the plaintiffs’ survey did not cover the land in dispute. Hence when the defendants gave evidence to establish a different northwest corner and a different line, and to dispute the southwest white oak corner, it was directly rebutting to show that the defendants held under a title which recognised the corners and line claimed to by the plaintiffs, these being admissions by deed and matter of record, which the late Chief Justice Thompson thus characterized: “ 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 are admissions only, and at others they may arise to the consequence of estoppels in pais; but as either they are evidence.” Now, in the present case, the proceedings in partition and the deeds not only recognised the western boundary of Riddle’s land — No. 1260 — as a common boundary, but the public road as the western boundary of No. 121. The distance eastward was also stated, and the lands of Wentworth and Risinger on the south, and of Demmington and Wagoner on the north, were called for as ad-joiners. Clearly this was competent evidence to go to the jury to show, if it did so, that the defendants had recognised and bounded themselves by the line of 1260, as claimed by the plaintiffs.

These are the only assignments of error we deem it necessary to notice; but for these the judgment must be reversed.

"udgment reversed, and a venire facias de novo awarded in each case.