Will v. PIPERWill v. PIPER
Opinion by
Grеtta Will instituted an action in ejectment, and in trespass for damages, by filing a complaint and abstract of title in which she alleged that she was the owner of certain land in Ligonier Township, Westmoreland County; that defendant Lаrkins owned the property adjoining her to the north and east; that Larkins contracted with defendants Piper for the cutting and removal of timber therefrom; and that the defendants wrongfully cut and removed timber from her land,
The description of the Will tract in the complaint is as follows: “Beginning at a point at the line of intersection of land of, or formerly оf, Charles Frisk with land of, or formerly of, S. Hanks and D. Rhoads; thence, along the line of said land formerly of Charles Frisk, North 46%° East, two hundred eighty rods (280) rods to a point on other land of, or formerly of, Joseph Johnston and Sarah Johnston; thence along the same, South 78° East fifty-nine (59) rods, to a' stone; thence South 46%° West two hundred seventy-four (274) rods to a stone; thence North 78° West, fifty-nine (59) rods, to the place of beginning, containing one hundred two (102) acres, strict measure”. Thеre was excepted and reserved a tract of approximately 8 acres not here material.
The description of the Larkins tract in the answer is as follows: “Beginning at a chestnut stump corner of lands how оr formerly of William Sutton and St. Clair Forest; thence North 40° West 2415 feet to a chestnut stump corner of lands now or formerly of Alex Himler; thence North 50° East 4405 feet to stones; thence continuing along land now or formerly of Alex Himler, Nоrth 40° West 1347 feet to post; thence along lands now or formerly of Robert Anderson and now or formerly of Charlés Frisk, North 47° East 3825 feét to a
The dispute concerns the location on the ground of the northern and eastern boundary lines of the Will property, along which boundary lines the Will property adjoins the Larkins property. Joseph Johnston was the common source of title to bоth tracts. The first deed from this common source was one to Ludwig Nordstrom, dated January 14, 1888, and covering the tract of 102 acres described in the complaint. Nordstrom conveyed this tract to Mrs. Will by deed dated November 6, 1934, excepting the parcel of approximately 8 acres not here material. By a subsequent conveyance the tract was conveyed to Mrs. Will and her husband, and finally, by deed dated December 27, 1951, it was conveyеd back into the name of Gretta Will alone. The description in all these deeds remains the same.
On April 1, 1915, the remaining portion of the Joseph Johnston tract was surveyed by D. R. Walkinshaw, and a draft was made of the survey showing thе courses and distances, giving the monuments and stating the area to be 590.236 acres. Joseph Johnston died
At the trial, Mrs. Will produced a draft made by Wаlkinshaw, who had gone on the ground in 1954 and surveyed according to the monuments which he had located in 1915. Walkinshaw was an engineer of fifty-three years experience and was thoroughly familiar with the general locality. He lоcated the hickory corner mentioned in the Larkins description, being the northeast corner of the Will tract. He also located a stone monument at the southeast corner of the Will tract, and found a pоst and wire fence at this point, separating the Will tract from lands formerly of Nils Schroder immediately adjoining it on the south. At the southwest corner no monument or other mark could be found. Using the monuments on the ground, and correcting the bearings to allow for the shifting of the magnetic pole, Walkinshaw found the northern boundary of the Will tract to run a course north 49° east, and the distance between the monuments to be 4606 feet. The remaining disputed boundary, that on the east, had a course south 67° east, and the distance between the two monuments measured 1232 feet. As surveyed by Walkinshaw in 1954, the lines of the Will tract in controversy coincided with the corresponding lines of the Larkins tract as originally surveyed by him in 1915. He fixed the area at 97% acres, which closely approximates the net quantity called for in the Will deed.
The defendants introduced the testimony of two surveyors. Burgess Boss made a survey of the entirе Larkins tract in 1951, and ran the easterly line of the
Appellant’s present counsel states the principal question involved as follows: “1. In an action of ejectment to determine a boundary dispute where plaintiff in her complaint set forth the description as it appeared in her deed and made no allegation that such description was erroneous, did the evidence support a verdict which rewrote plaintiff’s deed by increasing the lеngth of her side boundary lines by 269 feet”. His position is that Walkinshaw disregarded the Will deed completely, and that there was no competent evidence to sustain the jury’s verdict.
In determining the correct courses and distancеs must give the ground, and parol evidence
boundaries of land, way to monuments on is admissible to estab
It is significant that, in 1915, while the original owner (Johnston) was still living, a survey was made clearly defining the two lines now in dispute. The draft of this survey is entitled to great weight in the present cоntroversy:
Huffman and Foreman v. McCrea,
Appellant particularly stresses the Gera survey. Since the western and southern boundaries were defined by fence lines, Gera ran his survey from these two lines, using the distances stated in appellee’s deed, regardless of the possibility of monuments marking the other corners. In other words, he forced a survey based on the courses and distances in the deed, disregarding monuments which apparently were on the ground to be found. He wound up by reducing the purported area from 94 acres to 76 acres. Appellant argues that the stones given as the monument at the end of the second line could not be found. While Gera failed to find this corner, Walldnshaw did find the stones in question, and the uncontradicted evidence shows that this point was further marked by the fence separating the Will and Schroder properties.
It is unnecessary to discuss the remaining arguments on appellant’s behalf.
1
They merely set forth general principles to which reference has already been made. The question of what are boundaries is a matter of law for the court, but where those boundaries are is a question of fact for the jury:
Miles Land Co.
Judgment affirmed.
Notes
“2. Where monuments are doubtful, resort will be had to сourses and distances. 3. Courses and distances control the lines of a survey in the absence of calls for natural or artificial monuments or lines, or in case the monuments cannot be found. 4. A call for quantity will yield to courses and distances”.