Mineral Railroad & Mining Co. v. Auten
41 A. 327
Pa.
1898
Check Treatment

Opinion by

Mr. Justice Gbeen,

The Mineral Railroad and Mining Company, plaintiff in the court below and appellant, was the owner of four tracts of land situate in Mount Carmel township, Northumberland county, in the warrantee names of George Sheets, Andrew Shuber, George Coldrain and Jesse Evans. Three of these tracts, the Sheets, Shuber and Coldrain, were surveyed by William Gray, then deputy surveyor of Northumberland county, on September 2 and 3, 1784, in pursuance of warrants dated July 1, 1784, and constitute a block of surveys which is known as the “Ball Block.” The Evans tract was surveyed on October 17,1793, in pursuance of a warrant dated May 10,1793, and is a member of a block of surveys containing twenty-five tracts, and known as *578the “ Nicholson Block.” Wesley Auten, the defendant in the court below, was in possession of a tract of land of twenty-six acres and twenty-two perches, which was surveyed on December 8, 1885, in. pursuance of a warrant dated September 18, 1885. The Auten survey called for and adjoins on the north the Jesse Evans tract of the Nicholson block, and the Andrew Shuber tract of the Ball block on the south.

The contention in this case was whether there was any vacant land between the Andrew Shuber tract of the Ball block and' the Jesse Evans tract of the Nicholson block, which could be appropriated to the Auten survey or any portion o£ it, or whether the Ball and Nicholson blocks covered the land in controversy so as to leave no vacancy for the Auten survey. The Ball and Nicholson blocks being senior surveys are entitled to priority and must be first located.

The case was tried before the learned judge of the twenty-fifth judicial district, specially presiding, who, after the evidence was closed, there being no dispute as to the facts, being of opinion there was some vacant land between the two blocks of surveys directed a verdict for the defendant, Auten, for ten acres and eighty-five perches, upon which judgment was entered and from which the plaintiff took this appeal.

The plaintiff has assigned fifteen errors to the action of the court. The first specification of error relates to the admission in evidence of the draft found in the county commissioners’ office of Northumberland county among the deputy surveyor’s papers, purporting to have been made by William Gray, then deputy surveyor, and in his handwriting. This draft or survey was found in the place where the papers of the deputy surveyor of the county were kept, was a survey of the Andrew Shuber tract, made by William Gray, deputy surveyor, and sufficiently identified by the testimony of the grandson of William Gray, who testified that the paper was in the handwriting of his grandfather, William Gray, as he had handled a great many of his official papers after he became old enough to read, and was informed by his father and grandmother that' these official papers were in his grandfather’s handwriting. Besides, the paper was found in the place where the office of the deputy surveyor of the county was kept, and where official papers belonging to the office were deposited. Being an ancient survey *579it would be evidence of itself to elucidate and ascertain a boundary: Commonwealth ex rel. North Liberties v. City of Philadelphia, 16 Pa. 79. In Sweigart v. Richards, 8 Pa. 436, this Court said: “ The title to land cannot be acquired or established by unofficial diagrams, drafts or surveys. But such papers may often be extremely useful in fixing and designating doubtful boundaries. It has been an ancient custom of the courts to receive them in evidence for what they are worth, in illustrating a question of boundary. Thus in the case of McCormick v. McMurtrie, 4 Watts, 192, it was ruled that the field notes and other official proceedings of a deputy surveyor may always be given in evidence to explain his acts; and in the case of Nieman v. Ward, 1 W. & S. 82, it was ruled that reputation and hearsay is such evidence as is entitled to respect in a question of boundary, where the lapse of time is so great as to render it difficult to prove the original landmarks. In Payne v. Craft, 7 W. & S. 458, it was decided that the field notes of a deputy survejmr were competent 'as evidence of boundary, and also that a connected draft certified from the land office was competent evidence for the same purpose. A connected draft from the land office, is usually the work of a clerk and derives all its value from the juxtaposition of the different surveys. But the same work done by the original surveyor, if genuine, would seem to be a surer and more perfect guide as to boundary. Were, then, these field notes and this connected draft the veritable work of Bertram Galbraith, the deputy who made the surveys, and returned the survey under which the plaintiff claims ? The papers have been produced here in court and wear on their face the strongest appearance of authenticity and antiquity. They are covered with the rust of time, and are written in the strong legible chirography which distinguished public surveyors and other public officers seventy years ago.” The authenticity of this paper is strengthened by the fact that it corresponds precisely with the official return of the Andrew Shuber survey and the description contained in the patent. The court was clearly right in admitting this paper or survey in evidence.

The third, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth and fifteenth specifications of error relate to the action of the court in refusing the eight *580points presented by plaintiff, and directing a verdict for the defendant for ten acres and eighty-five perches. The eight points of the plaintiff request the instructions of the court upon the location of the Andrew Shuber survey and were refused. In this there was no error.

The official return of the Andrew Shuber survey calls for a [fine at its southeast corner, a maple at the stream in the ang-le of its southern line, a post at its southwest corner and a post at its northwest and northeast corners. This official return corresponds with the draft of William Gray which was offered in evidence. t

From an examination of the testimony of the surveyors called by both plaintiff and defendant, it does not appear that there was any dispute about the southern line of the Shuber survey. It was well located by its own marks found on the ground by the surveyors. The entire controversy grew out of the location of the northern line of this survey. The court instructed the jury: “The Andrew'Shuber was surveyed on the second day of September, 1784, and is older than the Jesse Evans, and if there should be any conflict between the Jesse Evans and the Shuber, the Shuber would take precedence, having been first located on the ground. All surveyors concur in testifying that the pine stump, as it is called, is a well known corner of the Andrew Shuber, and the Andrew Shuber can and must be located from that pine corner, as it is called for and was made by the surveyor who located it in 1784, and being a monument on the ground, well known and not disputed, the Andrew Shuber can and must be located from that comer; and running from the southern line of the Shuber north the official distance it calls for a post at 230 rods. In running the eastern line of the Shuber it calls for 300 rods as the eastern line of the Shuber, and we instruct you that the proper location of this northern line would be to run out this official distance from the pine stump 300 rods; that would give the northeastern comer of the Shuber; and running the southern line from this stump would fix the northwest corner of the Shuber, and a line running at the end of 300 rods to intersect at the end of 230 rods would give the proper location of the northern line of the Shuber. That -would leave, according to the testimony of the witnesses, about ten acres and some perches of the Wesley *581Auten warrant and survey not interfered with, and in my judgment it is the proper location of the Jesse Evans and Andrew Sliuber tracts and also of the Wesley Auten tract, and we so instruct you.”

This location accords exactly with the return made by William Gray, the deputy surveyor, to the land office, and on which a patent was issued to William Ball, containing a description which follows exactly the courses and distances of this official survey. But the plaintiff contends that the north line of the Sliuber survey was marked upon the ground by the deputy surveyor in 1784; that the living monuments which marked its location still exist on the ground; that the east and west lines of the Shuber should be carried north until they reached this marked line, the east line to the comer, which the surveyors testify was witnessed by a gum, and tlie west line to the corner witnessed by a chestnut oak.

It is a well-settled rule of law governing the location of surveys that the lines run and marked upon the ground by the deputy surveyor constitute the actual survey, and where these can be found the survey must he located to these lines. But the difficulty in the application of this rule in the present case is that the deputy surveyor when he came to make his official return cut off a strip twenty rods wide from the northern part of the east line and west line of his survey, and abandoned his northern line as originally run and marked upon the ground. The deputy surveyor had evidently discovered that the east and the west lines of the survey had been run too far north, which would have included a larger quantity of land in the survey than the act of April 1, 1784, allowed, viz: 400 acres and allowance. It appears on this old draft or survey that the length of the eastern line of the survey as originally run was 321.94 rods, and of the western line was 258.3 rods. By cutting off the strip of twenty rods, the length of the eastern line was reduced to 800 perches and the western line to 230 perches. Post corners were marked on this draft at the northeast and northwest corners, a line protracted from post corner to post corner, and the quantity of land reduced from 471-f acres to 440 acres. The survey thus changed and altered by the deputy surveyor was returned, and accepted by the land office, and a patent issued to William Ball in accordance with this official *582return. That the deputy surveyor had a right to alter his survey prior to his return cannot be questioned. This principle is firmly established by the authorities. In fact it was the duty of the surveyor to alter his return after he discovered- that he had included in his survey an excess of quantity, so as to conform to the requirements of the act of April 1,1784. This principle was decided in Healy v. Moul, 5 S. & R. 181.- “The first presumption is that every survey is made with the consent of the owner, if it is returned. That presumption is corroborated, if it is patented. It would require evidence of fraud and imposition by the surveyor, or by the adverse claimant, to let the owner take lands that had been appropriated to others. It would be opening a wide door if at the end of thirty years, evidence were to be received, that all this was done in mistake, and land opened to a new survey, where it had been appropri ated by grant and patent, for all that time. The laches and negligence of the party, when the act was his own, or adopted by him, could never be relieved against in a court of equity. I do not question the right of an owner to have his lines extended if his warrant .is not filled; nor do I doubt of the right of the deputy to alter his original survey, to throw out, or take in other lands; provided this is done recently and does not interfere with mesne rights, between the time of the original survey and the alteration, before the return. But when the survey is returned, the deputy is functus officio, and it requires a new authority from the surveyor general, or the board of property to warrant such alteration: 2 Sm. Laws, 255. What miserable confusion would ensue, if every deputy, after his survey returned was at liberty to change the position of an actual survey, actually returned, and disturb intermediate grants. It is the duty of the owner, to show the lands intended by his warrant to the surveyor; and the presumption of the law is, that he has shown this, and that the survey has been made by his consent; and if a survey is made with which he is dissatisfied, he should, without delay, complain to the surveyor general or board of property, and pray for redress; otherwise the survey will conclude him: 2 Sm. Laws, 256; Hunter’s Lessee v. Meason, 4 Yeates, 107.” The same principle will be found in the following cases: Vickroy v. Skelley, 14 S. & R. 372; Adams v. Jackson, 4 W. & S. 55; Drinker v. Holliday, 2 Yeates, 87; Hughes v. Stevens, 43 Pa. 197.

*583In Acre & Weiss v. Gilbert, 3 P. & W. 299, Justice Huston in delivering tbe opinion of tbe court, said, page 312: “ It was a practice sanctioned by many decisions that when a survey was completed, as far as running and marking the lines and making the calculation, audit was then discovered that land enough had not been included, the deputy surveyor included more land by protraction on paper so as to fill the warrant, and returned the draft as protracted to the surveyor general’s office, and if the land taken in by protraction was unappropriated before, the party had title according to the draft returned, but it is the return which in such cases gives title.”

In Maris v. Hanna, 4 W. & S. 348, this Court said: “In making the official survey intended to adjoin an old survey, if by mistake it does not adjoin, the error may be corrected at any time before the survey be returned; and the settler or warrantee making the survey and marking the line, if he find he has not a sufficient quantity, may abandon that line and take more at any time before another person acquires a right to the adjoining land.” In the recent case of Humphrey v. Cooper, 183 Pa. 432, the right of the deputy surveyor to change his survey before he returned it into the land office, is affirmed in the opinion delivered by Mr. Justice Dean.

If, as claimed by plaintiff, a mistake was made by the deputy surveyor in his return of the Shuber survey, it was the duty of the owner of the warrant to have made application to the board of property for redress, otherwise the survey will conclude him: Healy v. Moul, supra. His acceptance of the patent defines the linos and quantity of the survey, and the patentee and those claiming under him are concluded by it. This Court has said that “ the acceptance of a patent ends all controversy about lines and quantities other than those described in it: ” Bellas v. Cleaver, 40 Pa. 260. “ On general principles, a party is concluded by the lines of his patent: ” Lessee of David Davis et al. v. George Butterbach et al., 2 Yeates, 211. To establish the rule that the owner of a warrant can, after his survey has been returned and patent issued, enlarge and extend the lines of his survey, would produce the results stated by Justice Thompson in Bellas v. Cleaver, supra: “ It would have the effect to change and enlarge surveys even after; as in his case, a patent had issued. It would introduce lines neither returned *584by the deputy surveyor nor to be found in the patent. It would pass lands not sold by the commonwealth, and without her consent, and without paying to her the purchase money. It would ignore the orderly mode of changing a boundary by an order of resurvey, a consequence of which is payment for any increase of land, and an official return of the new survey.” In Raush’ v. Miller, 24 Pa. 277, we held that “to allow a warrantee, who has neglected or refused to return the excess of his warrant and pay for the land, to stand on a better footing than a new warrantee who has procured his survey and patent, and paid the commonwealth, would be to encourage not only negligence, but would be offering a premium for a palpable fraud upon the public revenue.”

The learned judge held the law correctly in his location of the Shubef tract and in his answers to plaintiff’s points.

The second, fifth, fourteenth and fifteenth specifications of error complain of the action of the court in regard to the location of the Jesse Evans, George Coldrain and Isaac Taylor tracts of land. The court was not requested bj^ the plaintiff to instruct the jury in regard to the location of either of these tracts, and its omission to do so cannot now be assigned for error. “ Error cannot be assigned for the omission of a judge to charge in a particular way unless his attention was called to it by a special request: ” Fox v. Fox, 96 Pa. 60. And in Phila. & Read. R. R. Co. v. Getz. 113 Pa. 214, it was held “ In a civil case, when no request is made, the mere omission to charge upon a particular point, is not ground of error.”

These assignments would be dismissed without further notice, but as the location of the Jesse Evans tract might be involved in further litigation we have concluded to pass upon the error assigned to the instructions of the court in regard to the location of tins tract. The northern line of the Evans is not disputed. The error complained of is the method adopted by the court in locating its southern line. The court instructed the jury that the proper mode of locating the southern line of the Jesse Evans tract was to commence at the southwest corner of the William Lane, a well known corner, and run east the various courses and distances till you come to the angle in the Jesse Evans, which lias been spoken of as a maple corner by a number of witnesses; then south ninety-seven rods the official dis*585tance of the Evans; then commence at the William Gilbert pine corner and run west until you come to the northwest corner of the Evans; then south eighty-six rods, and a line running from the end of the ninety-seven rods to the end of the eighty-six rods would make the southern line of the Jesse Evans.

The Jesse Evans tract is a member of the Nicholson block of surveys consisting of twenty-five tracts. The survey as returned calls to adjoin the Jesse Brooks on the north and east and the Isaac Taylor on the south. The William Lane is the leading warrant of this block, and calls in its return of survey for a chestnut oak as its southwestern comer. This corner is an established and undisputed corner in the block. William Gilbert, another of this block, calls in its return of survey for a pine at its northwestern corner. This pine is a well established and admitted corner in the block, and is resorted to by all the surveyors in determining the location of the Nicholson block. The Jesse Brooks calls in its return of survey for a pine at its southeastern corner, which would be the pine at the southwestern comer of the Gilbert, the pine being a common corner of the Brooks and Gilbert survejrs. The learned judge in his method of locating the southern line of the Jesse Evans began at the southwest corner of the William Lane and ran east along the southern line of the Mary Lane, Sarah Lane and the westerly south line of the Jesse Evans until he came to the angle in the Evans, the maple comer. From this corner he ran south ninety-seven rods, which would be the official distance, and established the southwest corner of the Evans. This part of the court’s location of the Evans is not controverted by the plaintiff in his argument, but conceded to be correct. The contention was made, and is, as to the location of the easterly south line and the southeasterly line of the tract. The court determined the location of these two lines by starting at the pine, the undisputed southwest corner of the William Gilbert survey, thence west to the northeast corner of the Jesse Evans, thence south eighty-six rods to the post corner of the Evans, and ran a line, at the end of this official distance of eiglity-six rods, west to the intersection of the line nmning south ninety-six rods from the maple. This in the opinion of the court properly located these two lines of the Evans, and would correspond with the official return of the Evans.

*586The cpntention of the plaintiff is that a mistake of twenty-rods in distance was made by the surveyor in running from the northeast corner of the Evans, the pine, to the pine, the northeast corner in the angle of the Evans. The deputy surveyor in his official return makes the distance 169 rods, while the actual distance between the two pine corners on the ground is but 149 rods. The plaintiff now seeks to add twenty rods of shortened distance between the pine corners to the line running south eighty-six rods from the pine the southeast corner of the Evans in the angle, making the distance between this pine and the post corner 106 rods instead of eighty-six rods the official distance. We are clearly of opinion that this method of locating cannot be adopted. The pine comer in the angle of the Evans fixes the length of that line at 149 rods, and if a mistake of twenty rods was made in the distance, it cannot be corrected by adding twenty rods to the line running south eighty-six rods from the pine comer. To do this would contradict the official return and add considerable acreage to the Evans tract, and interfere with the location and acreage of the Isaac Taylor tract. We discover no error in the method adopted by the court in the location of the tracts in controversy in this suit, and its direction to the jury to render a verdict for the defendant Auten for the ten acres and eighty-five perches was in accord with the well-settled rules governing the location of surveys.

Judgment affirmed.