203 Pa. 544 | Pa. | 1902
Opinion by
This was an ejectment in the court below to recover possession of about 1,131 acres of land warranted, as averred by plaintiff, in names of Reuben Haines, Martha Huston and Robert Morris in the townships of Union and Rush, Centre county.
The three, warrants were all granted the same day, January 8, 1793, and surveyed, the first two, August 12, 1794, and the third, August 19, following. The three tracts formed the southern end of a block, called the Levy block, of sixty tracts, the warrants for which were applied for on the same day by the same purchaser; they were surveyed on different days but returned as a block at the land office.
The paper title of plaintiff was complete; the only question was, whether the surveys covered the land in possession of defendant, and if so, whether appellant’s surveys constituted an attempt on the part of the commonwealth to grant a second time, the same land which she had theretofore, by warrant and survey, granted to appellee. The appellee claimed the land from which plaintiff sought to dispossess it, under four several warrants issued in 1792 and surveys made in July, 1793, more than a year before the date of appellant’s surveys. These warrants are the David Beveridge, John Price, Matthew McConnell and John Whelan. They call for over 1,300 acres and if they include the land in dispute, more than cover all that appellee is in possession of and more than plaintiff claims. These tracts, also formed part of a large block known as the Gratz block containing sixty-one tracts. The warrantee was the same Aaron Levy who took out the warrants for the Levy block; he conveyed the Gratz block to Gratz in 1804.
As already noticed, appellant’s surveys are, by more than a year junior to appellee’s, and if they appropriate the same land must yield to the older location. Do appellee’s surveys cover the land in dispute ? In point of time, if both attempted to take the same land, appellee being first on the ground, its surveys must be first located, for the surveys of appellant call among others, for tracts of the older, the Gratz block; not only is this the reasonable and just method of locating junior surveys, but it is the long settled lawful method, as pointed out in McDermott v. Hoffman, 70 Pa. 31, and in a long line of cases preceding it. To establish the location of a block, its own
To establish the location of individual surveys members of a block, the same rules are called into operation, and the separate surveys established on the ground by the marks on the ground and in their absence by the relation of the surveys to their block. Had any other rule been adopted, it would have been impossible to locate many of the surveys of a block made about the years the surveys before us were made. The surveyor seldom ran interior lines and sometimes not even the exterior ones; he measured the distance of the exterior lines of his block and marked the corners; noted their course; then went to his room and plotted his interior lines and made his return to the land office. In this return the block often called for older surveys, where he knew or thought he knew they were established on the ground, and these control the boundaries where all other marks which would stop short of them have disappeared.
Here, appellee after appellant’s prima facie case was in, undertook, first, to locate the Gratz block of which the four surveys which covered the land in dispute formed a part. If by the weight of the evidence it succeeded in establishing the location of the block, then the presumption would be, that the tracts of which it claimed possession were located as returned by the surveyor. This presumption might be rebutted by showing that the continuity of the block had been broken at the point where they adjoined their companions, that they had not been located at all, or at some other place; but the presumption was in favor of appellee. They could not be wrested from or detached from their companions in the block, except by indubitable evidence, that the return of the surveyor was a mistake or wilfully false, and that they had been located elsewhere by monuments on the ground. No mere negative evidence, that marks cannot now be found to correspond with the return will overcome the presumption. As long as the location of the leading warrant is established, the location of all the tracts in the block is fixed. And such is the substance of the ruling in Bushey v. South Mountain Mining & Iron Co., 136 Pa. 541, and in many
In this view of the law, appellee undertook to locate the Sharp Delaney, the leading warrant of its block; this is a descriptive warrant; while we will not say it succeeded in this beyond dispute, nevertheless, the weight of the evidence puts it on the ground to correspond with the return; then, with due regard to the older and adjoining undisputed surveys, called for in the return, such as the John Whitmer, Matthias Graff, John Burg and others, and the Bartholomew Wister block, the location of which was also undisputed, the entire Gratz block was placed upon land at that time vacant and so returned into the land office. Then several reputable surveyors testified, that for years they had known the boundaries of these tracts and blocks called for and that their location had never been disputed. On this and much testimony of similar import, the appellee relied as establishing the location of the Gratz block and the land of which it was in possession as a part.
The theory of appellant was, that the Levy block of sixty tracts of which the Reuben Haines, Martha Huston and Robert Morris were three, the most southerly tracts of the block, was surveyed in August, 1794, thirteen months after the location of the Gratz block and that the land in dispute was then vacant; that the location of the block, the Levy, was established by unmistakable marks made for it on the ground, some of them there to this day, and others there within the recollection of witnesses still living; two of them, it is argued, are specially significant, the George Latimore red oak, and the Wallace run hemlock; we do not think there is any reasonable doubt of these being marks of the block at the date of the original location of it, if plaintiff’s witnesses were believed, and their credibility was not questioned. There was also some evidence tending to show a white pine at the northwest corner of the Edward Scott, another of the tracts, and a yellow pine at the southwest corner of the Casper Haines.
There was other evidence of lines and marks on the ground of more or less significance. The effect of this location was, to put appellant’s Haines, Huston and Morris tracts over on and cover a large part of appellant’s location of the Beveridge,
The tracts of appellee’s block, here in dispute, were surveyed from July 8 to July 13, 1793, and returned into the office, March 21, 1794. The date of the survey is the inception of appellee’s title. Therefore, assuming it to be established, as of the year 1793, that the Gratz block is located on the ground by its calls and the Levy block as of a year after by marks and monuments on the ground, the Levy block must jdeld priority to the older Gratz block. It is wholly immaterial in what mau-0 ner the Gratz block was located, whether by calls for adjoiners or by monuments on the ground ; on the point we are considering the question is, without regard to method, which was there first? Both claim the right to be there now. The question of seniority is not determined by the method of the surveyor in defining the boundaries, but by the date he defined them; if at the time, he adopted the external lines of survey of an older date for the external lines of his block, that was the date of his survey, as much so, as if he had, notched a tree of each corner of his block and one for the outside corner of each tract; and the block is well located when so returned and is then beyond peril of appropriation by subsequent warrantees who may mark their surveys on the ground within the lines of the older block.
The difficulty of applying the law in the authorities cited on both sides, arises not from any conflict in the decisions, for there is none, but assuming the facts of location to be, as averred on either side, the counsel invoking them can safely say, they rule the case in his favor ; but they are directly against him if the jury rules the facts against him ; not only are their claims directly conflicting as to the location of certain tracts of their
The next important question to that of the actual location of the original survey of the Gratz block, is that raised by appellant from an alleged resurvey of that block. It appears that on June 7,1808, from a minute made on the records of the board of property, a petition was presented to the board by Simon Gratz, giving a list of the sixty-one tracts in his block, and stating that he was owner, and then come these words, apparently a quotation from a written petition or oral statement:
“ That your petitioner has reason to believe that some of the lines were not run originally, and others imperfectly marked, he therefore prays that the honorable board of property may grant him an order of resurvey to the proper deputy surveyor in order that he may have correct returns made on the said lands.
“ Whereupon, the board on consideration of the case order that the deputy surveyor of the proper district be directed to make correct resurveys on the aforesaid warrants and make returns of them into the office of the surveyor general agreeably to the prayer of the petitioner.”
It will be noticed, there was an interval of nearly fifteen years between the survey of 1793 and that of 1808, and the order was executed after this lapse of time by another deputy. We do not see, that the action of-the board of property on the Gratz petition and the order made thereon, subjected this return to any of the rulings of this court on descriptive, indescriptive or shifted warrants. Call them descriptive, by fixing the location of the block from the description of the leading warrant, the Sharp Delaney, there was no pretense in the petition or in the return, that the block had not been located on vacant lands by reason of prior surveys on other warrants on the land called for; obviously, Gratz believed the lines of the block, or some of the'members of it had not been run and marked on the ground; in this he was probably right; he also believed that his title would not be secure from subsequent surveys unless this was done; in this he was undoubtedly wrong. Under the act of April 8, 1785, which is applicable to both block surveys and which was doubtless known to land speculators as well as lawyers, it was directed that every survey returned into the land office should he made by “ actual going upon and measuring of the land and marking the lines returned upon such warrant ” after the warrant had come into the hands of the deputy surveyor, otherwise to be void and of no effect. It was not until 1807, that in McRhea’s Lessee v. Plummer, 1 Binney, 227, it was held by this court, that a survey not made on the ground was not absolutely void, but only voidable; that the deputy might adopt for the warrant,.lines of other surveys made by him without actually going upon the ground and marking the lines, and, that the return made by such a method was good. Even in this case, Bbackenbbidge, J., sharply dissented. Through subsequent years, many cases followed, of a similar character down to 1847, when in Collins v. Bar
Appellant complains of the meagerness of the charge on the evidence tending to show that by the resurvey of 1808, Gratz’s intention to abandon that of 1793 was strongly manifested. This is scarcely fair to the court. While in his general charge the learned judge did not very elaborately discuss this matter, yet appellant’s counsel in their twenty-first written prayer for instructions specify about all the material facts which bore in their favor on this question, and then close the prayer in these words: “ The jury are bound to regard all these undisputed facts and records as powerful evidence that the survey of 1793 of defendant’s tracts was abandoned, and that the same was located as returned in 1808.” This point was denied and properly so; there was notin the whole case any “powerful evidence,” that Gratz had abandoned in 1808, the survey of
Appellant has preferred fifty-eight assignments of error. The first to eighteenth, inclusive, complain of the court’s rulings on offers of evidence; a consideration of these rulings, with the evidence in connection with them, fails to disclose any error. The offers all bore on the question of location, original warrants, surveys and connected drafts from the land office, and the testimony of experienced surveyors having knowledge, not only of the location of the Gratz block, but of older surveys called for by that block; such testimony on a question of location is always relevant. So far as the cross-examination of appellant was objected to and the objections sustained, the reason for the ruling was, that appellant attempted by cross-examination to introduce its case in rebuttal, resting on the alleged resurvey of 1808. All this evidence finally came 'in and was fully before the jury, therefore, even if the objection at the time was not well founded, no injury resulted to appellant. These eighteen assignments are all overruled.
Appellant’s twenty-third, twenty-fifth, twenty-sixth, twenty, seventh, thirtieth, thirty-first, thirty-second, thirty-third, thirty-fifth, thirty-sixth, thirty-seventh, thirty-ninth, fortieth, forty-first, forty-second, forty-ninth and fiftieth assignments, are grouped together in the argument and they allege error in the charge as to the rule of location of members of a block of surveys. Undoubtedly, the members of a block cannot be wrested from their block, for every mark on the block is a mark for each member of it (Ferguson v. Bloom, 144 Pa. 549), and the instruction of the court below did not disregard this well es
As to the question raised bjr the fifty-fifth assignment of error, it is one which demands notice. In its thirty-first point appellee .requested the court to instruct the jury: “The plaintiff has failed to show, in contradiction of defendant’s evidence any possession of defendants in this case of land not embraced in' the original lines of the Beveridge, Price, Whelan and McConnell.” The court denied this point, saying, it would answer it more fully in connection with appellant’s last point. This point was as follows: “ That if the jury finds that the Rueben Haiiies, Martha Huston and Robert Morris are located on the ground as contended for by plaintiff, they must find for plaintiff for all the lands in said tract northeast of the northeastern line of the Beveridge, Price and Baker tracts as fixed by the black oak and the line of 1808, well identified and undisputed on the ground.”
In answer the court instructed the jury as follows :
“ Now I say to you as to this point that if you should find that the defendants’ claim of location is correct you should on the general issue find for the defendants ; but if you should so find because you would conclude from the weight of the evidence that the plaintiff’s surveys and the defendants’ surteys
Ordinarily, unless defendant files a written disclaimer of title to, or possession at the service of the -writ, of the whole or part of the land described in it, the presumption as to his possession is conclusive, even though he offers to prove he is not in possession or seeks to narrow such possession to a part only; the plaintiff is entitled to a verdict which will at least carry costs; but if he immediately files disclaimer, then the issue is confined to the part to which defendant sets up the right of possession. Sometimes a rule of court points out the practice, so that there is no uncertainty as to the extent of the possession in controversy. In this case as already noticed the writ claimed 392 acres, 127 perches, 446 acres, 154 perches, and 381 acres and allowance on three several warrants, situate in Union and Rush townships ; the writ was served on nine separate defendants; they denied being in possession of any land in the names of the warrantees set out in the writ by their general plea of “not guilty:” it took court and jury three weeks to determine just what land defendant was on; it was impossible for defendant to know what plaintiff claimed until it developed at least its prima facie case, consequently it was impossible to file a disclaimer to a defined part until the time of trial. Then, defendant called John Ardell as a witness, who testified positively, that defendant was not in possession of, nor did it claim at any time a right beyond the lines of the Beveridge, Price, McConnell and Whelan tracts. Undoubtedly, part» of the land described in the writ is not in possession of nor is it claimed by
We have not taken up each assignment of these fifty-eight and discussed each; it was not neccessary; manjr of them are wholly without merit; of appellant’s twenty-three written prayers for instructions, the court affirmed twenty but the jury denied the facts and inferences set out in these; that is a trouble in appellant’s case a court of review cannot cure.
The judgment is affirmed.