128 Pa. 636 | Pennsylvania Court of Common Pleas, Centre County | 1889
Opinion,
This case was before us last year, and may be found reported in 121 Pa. 387. We are not asked to reconsider or qualify anything then said, but to consider questions raised on the last trial.
The land in controversy is claimed by the company plaintiff as part of a survey made in 1785, in the warrantee name of Richard Whitehead, now owned by it. The defendant is in under a recent warrant and survey, and insists that the true location of the Whitehead does not include this land. The location of the Whitehead is therefore conclusive of the rights of the parties. It cannot be located by marks on the ground made by the deputy-surveyor to witness the lines, for no such marks are found on any of its boundaries. Resorting next to the adjoiners, we find the Whitehead calls for the Bryan, a survey of the same
It is very clear that, in a contest between two adjoining surveys, the junior must always give way. It may have a well-marked line of the proper age for its own survey inclosing it, but the senior will not be affected by it. It will reach to its own lines, appropriating all within them, and the junior survey will be restricted to what may be thus left for it. It is therefore correct to say that the lines of a younger survey cannot change, alter, or affect those of an older one when they come in conflict. Here the question raised is quite different. The lines of the younger survey, calling for the older as an adjoiner, are offered as showing the acts and declarations of a deceased deputy surveyor as to the location of the line of the older. There is no conflict between them. The younger survey asks nothing adverse to the older. The purpose for which the evidence is offered is not to disturb, but to sustain, the lines of the senior survey, by showing that the sureyor who located the younger tract recognized the lines of the older one as being where it is now claimed they are, and acted upon that belief in doing his work.
The McKissick and the Elliott were surveyed in 1797. The
The second assignment is sustained for the same reasons. The surveys embraced in the offer are of much more recent date, but are nevertheless ancient, being of the ages of 71, 68, and 35 years, respectively, at the time of the trial. They show the official work of different deputy surveyors, made long before the present controversy began, in the location of warrants upon the ground which called for the Bryan or the Whitehead as
The eighth assignment raises the only other question to which it is important to advert. The theory of location presented by the plaintiff depended, in part, on the King, which it was alleged was. the survey intended by the call for Dougherty, in the angle on the west of the Bryan. Upon this sdbject the court instructed the jury that, in case they should conclude that the King was the survey intended by the call for Dougherty, “ it would be some evidence of location. If that call for Mr. Dougherty was a call for the King survey, and if the King survey is located there, that call would furnish some evidence of the location of the Samuel Bryan.” This was true, but it was not a full presentation of the subject. The general rule is that a survey, in the absence of marks that restrain it, goes to its adjoiners and may be located by them. If, therefore, the jury had found, as this instruction supposed it possible they might find, that the King was called for as an adjoiner on two sides, and was located on the ground as contended for by the plaintiff, this would take the Bryan to the King, unless it was stopped short by work on the ground made for its own lines. Such a finding as was contemplated by this instruction would have located the Bryan against the King, and been a substantial adoption of the plaintiff’s theory of location. It was not enough to say, therefore, that a finding for the plaintiff as to the location of the King, and its identity with the Dougherty called for, was “ some evidence of the location of the Samuel Bryan; ” for such a finding would locate the west side of the Bryan, in the absence of marks on the ground to override the call. It may be, as is suggested by counsel for the defendant, that such a finding would locate the Bryan in such a manner as to exclude the land in controversy; but that was for the jury, and we cannot say that the plaintiff was not injured by the instruction complained of.
The question raised by the fourth assignment has been considered in what has been said upon the first and second assignments, but another word may not be out of place as to the
Judgment reversed, and venire facias de novo awarded.