Pennsylvania Canal Co. v. Dunkel

101 Pa. 103 | Pa. | 1882

Mr. Justice Trunkey

delivered the opinion of the court, October 2d 1882.

Tlie act of February 25th 1826, P. L. 55, made it the duty of the canal commissioners, with the approval of an engineer and the consent of the governor, to determine the location and dimensions of the canal. It having been located through the farm of Richard Trewick, he and the commissioners disagreed, whereupon jurors were appointed to value the land taken and assess the damages, and it was their duty “ to describe and ascertain the bounds of the land by them valued:” In the report, the land valued is described as seventy-five perches long and six and four-tenths perches wide, with a post at each corner, the courses and distances given, and the quantity, bounded on each end by the heirs of Landis, adding that “ a diagram whereof is hereto annexed.” That diagram is dated October 5th 1826, the date of the inquisition, is signed by James Maginness, and is the only known paper showing tire location of the canal through Trewick’s farm. The entire paper, including the explanatory notes, appears to bo in the same handwriting, and it is not alleged that it has been changed in any. way since the day of the inquisition. It is a “ draught of the part of Richard Trewick’s land which the Pennsylvania Canal occupies, containing three acres, strict measure, viz.: A, B, D, C,” as appears upon its face. Between the land marked, by said letters and the border of the Turnpike road is a strip of land marked B, F, E, D. Below the signature of Maginness is the following: “Note — B, F, E, D, represents a strip of land which lies between the turnpike and canal, containing two acres and thirty-six perches, strict measure.”

“Note. — A, B, D, C, represents part of the Pennsylvania canal.”

The plaintiff gave in evidence that part of the draft over Maginness’ signature, and objected to the part below “ because not part of the record, and not being a memorandum which the inquest had authority to make,” and now complains that the court received the whole. As a draft of a survey the pertinent explanatory notes were as competent as any other part, whether above or below the signature; and if properly identified, the whole would be as competent without a signature as with. The diagram annexed to the inquisition would have like weight if signed by nobody. Its competency does not depend upon the name of Maginness, nor upon the authority of the inquest to locate and determine the quantity of any-lands. The learned judge of the common pleas considered it a valid part of the report, which, having remained of record without objection for fifty-four years, will avail in locating the land taken. There was no error in that. The inquest was bound to describe the land they valued. What is a description worth which will apply to one place as well as another? The land was a narrow piece across a larger tract; and by moving the posts set at its corners, it would be without marks upon the ground. These would likely be moved in the-making of the canal. The turnpike was the nearest mark having the appearance of permanency, and the inquest properly referred to it, so that if the movable marks should be shifted the entire evidence of the location of the land valued would not be lost.

Rut if the inquest was without authority to refer to á permanent object to indicate the land which they had actually valued, the draft was competent in an inquiry to ascertain where the canal was located. The Commonwealth had made the location and was a party to the proceeding to determine the amount of damages suffered by, the owner, which proceeding was more than half a century before the bringing of this suit. Attached to the record is a draft which tends to show the location. It was made after the beginning of the canal, and before its completion. It must have been known to the parties. interested. It is consistent with the place where the canal was constructed. The witnesses who could point out the location, if living, cannot be found. Such a draft, under such circumstances, is pertinent. And if either party puts in evidence a portion of it, the other may demand that the whole be read.

Between the canal and the centre of the turnpike is more land than stated in the draft. If the line marked on the draft is to be taken .as the centre of the turnpike, it favors the plaintiff’s claim in this action. But it is too plain for doubt that in fact the line is on the border of the turnpike. The plaintiff-invokes the application of a familiar principle respecting grants of lands bounded by highways in order to shift this line from the margin to the centre. There was no grant, unless the appropriation of land by the state be called a grant. That land did not touch the highway; the highway was used as an object at a certain distance, and cannot be considered in any other light than a landmark. When it was referred to as such, it would have been as fit to have taken its centre as its margin to measure from ; but whichever was taken must be used in ascertaining the location of the land which the state appropriated. Being a landmark for the defining of the land taken for the canal, it is not controlled by the principle that a grant of land bounded upon a highway carries the fee to the centre of it if the grantor at the time owned to the centre.

That part of the charge constituting the fifth assignment of, error was not misleading. If it be that one or two expressions are exceptionable, they were so modified by the context as to be harmless. The sum of what was said is, that when the state had taken and held possession of land for more than thirty-one years, and always acquiesced in certain lines and boundaries, those wlio purchased from the state will not be permitted to shift the location upon doubtful or uncertain evidence; and if the evidence leaves the case in doubt, true policy.would sustain the lines and boundaries so long acquiesced in; but if the true lines and boundaries be clearly shown, they can recover and hold to the same, notwithstanding such acquiescence.

Judgment affirmed.