| Pa. | Jun 22, 1881
delivered the opinion of the court
It would be scarcely possible that evidence could more clearly show the location of the land which the plaintiff claimed to recover. The line of 1849 is marked on the ground, both parlies proved it and concede that it is the north boundary of the land in controversy, which is a strip about eight perches wide and.one hundred perches long, bounded on the south by the original line of the John Vaughn survey, as described in the praecipe. In the amended description said line of 1849 is the north boundary, the south is called the original line of the Vaughn survey, and the strip is seven and three-tenths perches wide and ninety-four and four-tenths perches long. This amendment was directed under the Act of March 14th 1872, a salutary law that enables the court to make the record conform to what was tried before the jury and found by the verdict. Where, as in this case, there is no room for doubt as to what was tried and found, it is the duty of the court to.allow the filing of an amended description if one be needed. The ingenious argu
A division line between the Vaughn and Lewis tracts was not marked at the time of the original survey. The west line of these tracts, extended, is also the west line of the Stewart tract, the three in same block, and the location of the southwest corner of the Lewis and northwest corner of the Stewart being known, controls the intermediate corners of the tracts on that lino. By the official survey the west line of the Stewart tract is two hundred and twenty perches, of the Vaughn, two hundred and fifteen perches, and of the Lewis, one hundred and ninety perches. The actual distance is greater, which, proportionally distributed, locates tbe northwest corner of the Lewis tract one hundred and ninety-three and four-tenths perches from the known southwest corner. Taking this fact as true, the court directed a verdict for the plaintiff, evidently treating the aforesaid corners as the sole basis for the line of division.
On the east of these tracts were lands surveyed in 1785, and the east boundary from tbe southeast corner of the Lewis tract to the northeast corner of the Stewart, is by no means a direct line. The Jane Campbell tract is bounded north, south and west by parts of the Vaughn and Lewis tracts, the west line of these tracts being only one hundred and eight-five and four-tenths perches from the west line of the Jane Campbell. The southwest corner of the Jane Campbell tract is a biack oak, and the northwest corner a white oak, and the said black oak is a corner in the official survey of the Lewis tract, and the white oak a corner in the same survey of the Vauglm. These are as well defined as any other landmarks in the Lewis and Vaughn surveys, and have no less power because they are also the marks of an older survey. Tire official distance between these corners is, along the Lewis tract one hundred and twenty-seven perches, and along the Vanglm tract ninety-live perches, but the actual distance is greater, and should be apportioned by the same rule as was applied in fixing the division corners on the west line of the tracts. The same witness who testified on behalf of plaintiff fixing the line to which he recovered, also said that if the line were determined by the Jane Campbell corner, Parks would go further north — north of the line to which he claims. It is contended by the defendants, that if the line surveyed and marked in 1819 be set aside, the division line should be settled by said corners of the Jane Campbell tract. Why part of the ascertained landmarks should be cast aside so as to favor the owner of either the Vaughn or Lewis tract, is not explained by either party. No rule imperatively requires that the division
If any question of fact depending upon oral testimony be in dispute it must be submitted to the jury. If there be dispute as to the location of any comer or corners, and consequently of where the division line should be, the jury shall decide it, unless the parties agree to submit the fact to the court or a referee. The iirst assignment is sustained. We are of opinion that there is no error in the rulings set forth in the remaining assignments.
Judgment reversed, and venire facias de novo awarded.