110 Pa. 446 | Pa. | 1885
delivered the opinion of the court, October 26th, 1885.
We cannot agree with the learned judge of the court below that the name, “ George Meade,” written by the deputy surveyor, on the northwest of his separate drafts of the Mifflin surveys, was not of itself a call for the Meade line. It was, and could have been, nothing else. For what other conceivable purpose could the deputy have placed that name as it is found on the drafts, other than to show that warranted land of George Meade adjoined on the northwest? He knew the position of those lands, for he had surveyed both blocks upon the same day, and we cannot suppo.se that, departing from his official duty, he
The fact is, what is here stated never was and never would have been doubted but for the dictum found ip Ormsby v. Ihmsen, 10 Ca., 462, in which case the learned justice who delivered the opinion fell into the error of supposing that, after twenty-one years, an absolute presumption was raised that the lines of a survey were run on the ground as described in the official draft." That a position of this kind must be regarded as radically wrong is obvious from the fact that it makes the official courses and distances control not only the calls, but also the lines that may be found on the ground. For the purpose of quieting titles and settling disputes that must otherwise inevitably arise from chamber surveys, a presump■
But even this case does not help the ruling of the court below in the case in hand, for there the lines of the call were run at an angle with the line of the official draft, and there was a call for a black oak at the one end of that line. Here, on the contrary, there is no call for a corner, and the line on the Mifflin block is identical, as to direction, with that of the Meade surveys. Now we of course agree that the effect of the call may be rebutted by such facts and circumstances as tend to show that the surveyor did not intend to limit his survey by its calls, or what otherwise might be taken as calls, as in Henry v. Henry, 5 Barr, 249, where it is held that lines and marks found upon the ground will rebut the presumption of an intention on part of the artist to adopt the line of an adjoinder; so in Kelly v. Graham, 9 Watts, 116, and Wharton v. Garvin, 10 Ca., 340, where the surveyor indicated his intention by leaving a vacant space between his closing line and the calls marked on the margin of his draft. In such cases the design becomes obvious from the unambiguous act of the artist. So would it have been as to the subject of the present controversy had the deputy drawn on his maps the northwest line of the Mifflin block and the southeast line of the Meade surveys as distinct lines, leaving a vacancy between them; but as it is, they have but a single line in common, hence conjecture is excluded. And in this connection we may here observe that, had the surveyor adopted the Beech corner of 5282 as a corner of the Mifflin tract 5101, that would of itself have determined the northwest line of the Mifflin block; but as lie did not do so, that fact strengthens the position of the plaintiff, for why he did not adopt that corner if he intended the line of the Mifflin block to be other than the Meade line is inconceivable. With the Redman survey the ease is different, for as there is no call for an adjoiner on the northwest, the official distances must govern, and they must determine its length in that direction. As what we have said fully disposes of all the assignments of error, we need not refer to them seriatim.
The judgment is reversed and a new venire ordered.