Acre v. Gilbert

3 Pen. & W. 299

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1832
• Status: Published

Opinion

The opinion of the court was delivered by

Houston, J.

The plaintiff claimed by an improvement, commenced in eighteen hundred and eight. They had neither office title, nor survey — how they got out of possession did not appear in this court.

The defendants shewed a warrant of the office of the 3d September, seventeen hundred and ninety three, to Jacob Buchman, for one hundred acres of land, adjoining lands of Michael Ohl, J. Sigfried, and James’ land, near Lizard creek, in Northampton county, (at that time the land in question was in Northampton county.) It was admitted that in seventeen hundred and ninety-three, a certain Jacob Bachman, acted as an assistant of G. Palmer, deputy surveyor of that county, that he executed the above warrant, adjoining Sigfried — Touching Ohl’s at one corner, and not coming near James’ land, in short that he left out the land in question, which is bounded by Ohl’s and James’s land, and he.run into two old surveys,at the one end. This survey was not returned, it could not be returned by the deputy surveyor, if he regarded his duty.

In the beginning of October, eighteen hundred and six, G. Palmer,wrote to Jacob Weiss, informing him that he had come to that neighborhood to complete some business; that his survey as made by Bachman, interfered with an old survey, and requesting him if he thought the matter worth attending to, to send his son, that he, Palmer, might complete the business. On' the 17th of October Palmer made a- survey, taking in the land in question which was expressly called for by the warrant, and leaving out the land included in prior surveys. This survey was returned the the fifth July eighteen hundred and ten, and on twenty second February, eighteen hundred and four, a patent issued to Jacob Weiss.

George Palmer’s deposition had been taken, and was read in the cause, he stated that he had refused to return the first survey made by Bachman, because he had discovered that it interfered with older titles; that in October, eighteen hundred and six, deponent went personally to the ground and executed the warrant as comformably to its call as could be done and afterwards returned it for eighty five acres, there not being land enough to makeup one hundred acres; that at the time he only marked one line adjoining Hantwork’s claim; that he examined the other lines, and finding them distinctly marked, for the adjoining surveys, he did not remark them, a practice he had been accustomed to, and which had been sanctioned by the Surveyor general; that at that time there was no improvement whatever on the land included in the survey as returned by any person whatever; that young Weiss was along when he made the survey. No other testimony was sent here with the record.

The defendants requested the court to charge on the following points:

1. That it is competent to the Surveyor to extend the lines of a survey at any time before it has been returned: provided it does no injury to third persons.

Answer by the court. — This is true asa general^ proposition.

2. That the lines of the survey in question, having been extended •by Mr. Palmer, the deputy surveyor, by going on the ground, and marking one of the extending lines, and finding the others distinctly marked for the adjoining surveys, before the date of plaintiff’s improvement, was sufficient to entitle the warrantee to the land, that survey having been returned in less than four year* , after it was made. ■

Answer. The extension of the lines of the survey in question, by Mr. Palmer, deputy surveyor, going on the ground, and marking one of the lines, and finding the other lines distinctly marked for the adjoining surveys, before the date of the plaintiff’s improvement, would have been sufficient to entitle defendant to •the land, had he procured the survey as extended, to be returned before plaintiffs commenced their improvement.

.3. That if the warrant under which the defendant claims, is accurately descriptive of the land for which it calls, and the deputy .surveyor through ignorance or mistake made a survey, excluding part of the land described in said warrant, and not conformably thereto, it was competent for the deputy surveyor, before the return of survey to correct the mistake: and if in October, eighteen hundred and six, before the commencement of plaintiff’s improvement, the said deputy did go on the ground, and opened and marked aline, correcting the survey, conformably to the description in the said warrant, the title to the land included vested in the defendant at that time: the return of that survey having been made in a reasonable time.

Answer. — This proposition is true as applicable .to cases where the rights of third parties do not intervene. In this ease the defendant Weiss has failed to procure his survey to be returned until eighteen hundred and ten,theplantiff’s improvement commenced in -eighteen hundred and eight. Weiss had his survey made in seven teen hundred and ninetythree, excluding the land in controver- , sy; he suffered-it to remain so till eighteen hundred and six, •when he had his survey altered so as to include the land in controversy; it was then competent to have the alteration made; but he should have procured his survey to be returned. Whether the -survey was not returned through the neglect of Weiss, or of the deputy surveyor is immaterial in this case. Gilbert might purchase the land in question at any time' previous to the return of .survey, unless he had actual notice of the alteration of Weiss’ survey, by which the land in question was included in the -survey. This cannot be distinguished from the case of Diggs v. Downing, 4 Serg. & Rawle, 348. The principles recognized in that case are applicable to this: and the plaintiff having commenced his improvement before the defendant’s survey was returned, without any notice of the alteration of defendant’s survey, as made in eighteen hundred and six, has obtained a preference to the land in question. Your verdict should be for the . plaintiffs, there being no disputed facts.

The Judge continued,

It has been objected that the plaintiffs could not recover without a survey. The land in question only fifty two acres, is completely surrounded by the lines of adjoining surveys, made by proper authority and well marked; that is sufficient to designat the plaintiff’s claim, and they may in this case recover without a' survey.

In countries where the government has no land to sell, or where there is but one mode of selling, and by that the contract is made and evidenced by a single instrument under the seal of the government, which transfers the soil, designated by boundaries previously established, and evidences the payment of the money,- by the purchaser, it is possible to lay down general rules, which will apply to all cases; but where the state sells by warrants on which all the purchase money has been paid,some of which, according to the law under which they issued, vest a title in the holder of them as soon as they are surveyed and returned, and others although paid for,- and surveyed and returned, yet vest no title unless the owner within a specified time enters on the land and by himself or a tenant,.improves the same by clearing and cultivating a prescribed number of acres, within a prescribed period. Where the same government has-at other times disposed of land by location or application, on which-no money was paid, except the fees to the officers, and none was to be paid until the land was surveyed and returned; and then to be paid within- a year, and where that time of payment has been extended by legislative provision for more than sixty years; where although the regulation directed these locations or applications to be-surveyed and returned within six months, not one fourth of them were surveyed or returned within that time, and yet when returned have been accepted every year since, and will and must for many years to come; in cases where there has been a survey accompanied by actual possession, where there is no- adverse claim, and in many eases where there is an adverse claim, Biddle v. Dougal 5 Binney 142: where in addition to all this, ithas by long usage become the-settled law, that if two persons obtain office rights, describing the said land, one of them can survey and return and hold other land, not deseribed, and in some cases, as where after survey and before return he moves on to the land and continues to reside there, thus giving notice of his appropriation of it, can hold it without a return of his survey, when to these is superad ded, that at all times a person would acquire a right to vacant, and unsold land, or to land which had been surveyed on location and abandoned, by entering on and occupying it, by making it a place of abode and the means of supporting a family,and might and may yet pay the State for it in the mannerprescribed, or which shall be prescribed, add to all these that the owner of an office title, or the actual settler, may after having commenced a title, change his mind, and determine not to take the land, and not to pay the State for it; where I say all these modes of acquiring right to land have existed and the rights, under them conflict, and are disputed in courts, it must be apparent that but few rules can be of general application, that precision of description in location, or warrant diligence in procuring the completion of the title, accident of mistake or himself or the surveyor or other officer in returning it, notice or want of notice of what has been done, and is intended to be done, brought home to an adverse claimant, in short that a thousand circumstances may vary the justice of the case and the law of the case, for they are generally the same thing. General rules, may, it is true, be adopted which will suit many of these cases, but many exceptions depending on circumstances, as different as possible, make the exceptions to these rules, that is, make cases which do not come within these rules, very numerous. Almost every one of our suits as to the title to lands, are cases in which it was contended that the circumstances made it an exception from general rules.

It has too often happened that in reporting those cases, the facts and circumstances of the case are stated in a very defective manner, and sometimes the decision founded on those peculiar facts has been mistaken for, and reported as, a general rule. This has led, and will lead to confusion and uncertainty. The present case is sent here with no testimony except G. Palmer’s deposition.— It was decided below as an abstract question, depending solely on time, and it was said that whether the delay arose from the fault of the surveyor, or of the owner, was immaterial. A proposition which is never true except when an office right has been surveyed on land not described in it, and has not been entered on and occupied by the owner of the right, or where an addition to a survey has been made on paper, without going to the ground and marking the lines of that addition.

I proceed to notice some of the cases on the subject of altering the lines of surveys. Drinker v. Holliday; 2 Yeates 87.— The facts of this case are that Holliday’s warrant was surveyed and returned before the plaintiff’s title commenced. Drinker’s was laid so as to adjoin it as then returned. It was after this discovered that Holliday’s interfered with another title older than itself, and to get clear of this, an order to re-survey it was obtained.— It was re-surveyed clear of the older title, butso as to include, what before that time had been surveyed and returned for the person under whomDrinker claimed. It decided that Holliday’s having executed his survey and designated his boundary, was notice, of the extent of his claim,and any person might obtain the land adjoining. That although Holliday might resurvey and take in vacant land, he could not take appropriated land; the justice of this decision is very obvious. Drinker had acquired right to the land after Holliday, by his survey, had given notice that he did not claim it.— The principle of this case has been adhered to, but an inaccuracy has crept into the report. It is said after a survey has been completed on the ground, a new survey cannot be made without new directions, because the authority of the deputy surveyor has been determined. In that case Holliday’s survey had been returned, and m such case no new survey can be made without an order from the board of property to the Surveyor General. Before the survey is returned, the lines may be extended or the whole situation changed without any new order; so are all the cases. The next case is in Adams, Lessee, v. Goodlander & others 2 Yeates, 313. In this case the plaintifl’s survey had been executed so as to exclude the land in question, and afterwards and before the return enlarged so as to include it. One of the defendants claimed under an application laid after the plaintiff’s first survey, and others on an improvement after the plaintiff’s first survey,and before his second enlarged survey, and the decision was in favor of the defendants.— See also Evans v. Nargang; 2 Bin. 57,and Biddle v. Dougel Id 37. The same case is again reported, 5 Bin. 142, and the same point taken as settled law, the title was then disputed on other grounds.

Davis v. Keefer, 4 Bin. 164 is more like the case before us than any other in our books, and greatly contrary to the decision in this case. The plaintiff in that case claimed under a warrant of seventeen hundred and seventy two, to adjoin James Clark, the owner went with the Deputy Surveyor to execute the warrant, but Clark claimed by improvement, and at that time had no survey, nor line marked on that side, but he proposed to take a warrant and to procure a survey. Gants paid the Deputy Surveyor, and left his warrantto be executed as soon as Clark’s survey was made. Clark’s land was surveyed in seventeen hundred and seventy three, and sometime after Gants’s warrant was surveyed not adjoining Clark but leaving forty acres between him and Clark, and that was the only good land he could get. In seventeen hundred and eighty six Gants wrote to the deputy Surveyor, on the subject, inquiring what had been done. An answer was written which did not appear to have reached him. In seventeen hundred and eighty six, Clark took a second warrant for the land between his old tract and Gants’s as laid, had a survey and return,and in seventeen hundred and eighty nine by two separate deeds to the purchaser, sold both his tracts, with covenant of warranty as to the old tract, but none as to the second. In describing the old tract, it called for Gants’s as adjoining it on four lines, though if the second survey was good it did not adjoin Gants’s at all. This gave notice, of Gants’s claim to the purchaser. One of his deeds shewed that Gants had some claim to the land conveyed to him by the other. In seventeen hundred and ninety six, Gants procured an order of the board of property for a survey of his warrant which was made so as to include the forty acres taken by Clark’s second warrant. In eighteen hundred Gants sold to Davis who took a patent and brought this suit. On the first trial there was a verdict for plaintiff which was set aside; a second trial before Smith, Justice and again a verdiet for plaintiff which was confirmed on appeal. I have stated this case minutely, because without such statement it would appear to contradict the prior decisions. It was a precisely descriptive warrant adjoining Clark and between him and the North mountain. It was a warrant on which all the purchase money had been paid, and not a location on which nothing but office fees had been paid.— The Deputy Surveyor could not mistake where it was to be laid. Clark knew of its existence, and where to be laid for Gants and the Deputy Surveyor had called on him when they went first to execute it, and he had promised to take a warrant and procure a survey that it might be laid adjoining to it. The Deputy Surveyor although in a certain sense entrusted to lay it, yet had no authority and no right to remove it so as to leave out the best land.Clark knew it was unfairly laid and attempted to take advantage of this, and his deed gave notice to Keefer, who purchased from Clark, of Gants’ claim to the land adjoining the old survey. It has been said there is no difference in the law whether a title commences by warrant on which all the purchase money has been paid, or a location on which none has been paid, and to a certain extent and under certain circumstances,as where each has been duly pursued, this is true. The earliest in date takes the land, but when the question turns on abandonment, there is a wide difference,aman will not readily abandon what he has paid for, though he may determine not to complete a right on which he has paid nothing. Cox v. Cromwell, 3 Bin 116. Many cases say a right on location is easily abandoned.

Davis v. Keefer is a strong case, to show that a warrant on which purchase money has been paid, is not easily lost by neglect. It is also a strong case to shew that it is material in case of a warrant and payment of money, whether the delay was occasioned by the fault of surveyor or owner, it appeared Gant had paid money to the Surveyor when first on the ground in seventeen hundred and seventy two. Still however I do not think the decision would have been as it is, were it not for the notice to Clark, and through the deed, to Keefer, of the right of Gants. In short it decides that where a man has put into the hands of the deputy surveyor, a precisely descriptive warrant, and paid him for surveying and returning the right of the owner of the warrant as against those who have notice of the facts will not be lost, by a delay of deputy surveyor from seventeen hundred and seventy two till seventeen hundred and ninety six. The notice in this case too, was actual notice to Clark, of the existence of Gant’s warrant, and that it was to adjoin his survey on his improvement when surveyed. In addition I have no doubt the jury considered that from the whole of the proceedings there was something worse than mere negligence; some combination between Clark and the Deputy Surveyor, and where a Jury find fraud or find a verdict which is only right if they believe there was' fraud. Where two Juries find in the same way, Courts will take it there was fraud, and that makes such a cáse an exception to rules established for fair cases. I.have dwelt on this case to show how important it is in the trial of causes to attend to facts and how unsafe for a Judge to disregard the facts and decide what are called general rules. Graham v. Moore, 4 Serg. & Rawle 462.

The survey of the defendants was at first laid on ground different from that called for, it was worse, than that it was laid on ground before appropriated. To have returned it as firstlaid, would have been a violation of duty in the Deputy Surveyor. That it was so laid, seems to have been the fault of his assistant. Whether that assistant had been paid for making and returning the survey does not appear. The matter rested from seventeen hundred and ninety three till eighteen hundred and six, and if in the mean time an innocent person had taken a warrant'for, or improved on, the land in question, such person might have held it. Nothing of the kind was done, and in eighteen hundred and six the land called by that warrant was as much unclaimed by any other person as it had been in seventeen hundred and ninety three. In eighteen hundred and six it was duly surveyed adjoining James’s land on one side,. Ohl’s on another side, Sig fried’ s on a third, and a line run and marked on the fourth side. The lines of the old adjoining surveys were examined, and being found on the ground were not remarked-— This was right 3 Serg. & Rawle, 283 Covert & Irwin, 13 Serg. & Rawle 122 Lamburne v. Hartswick.

The case of Star v. Bradford, 2 Penn. Rep. 384, has been cited to support the decision in this case. I agreed to the decision of this court in that case, but I would have taken into view not barely the lapse of time from seventeen hundred and sixty nine, the date of plaintiffs application, till seventeen hundred and eighty four-the date of the warrant of defendant in erroi^ but also that there-was no return of that survey until after seventeen hundred and eighty eight, before which time the adverse warrant was surveyed, returned, patented and sold to an innocent purchaser. The act ninth April, seventeen hundred and eighty one, had directed that all surveys not before returned, should be returned within nine-months, and the act of fifth April, seventeen hundred and eighty two, had made it lawful for the Surveyor General to receive returns1 of surveys fairly made for such further period as to him should appear just and reasonable. The owner of A. NenmAg-Swarranthadneg. lected the first, and the last act until another had completed a legal title and sold it, and the length oi time and the sale made it unjust and unreasonable to confirm his title. That case however takes the distinction between the case where the delay is owing to the fault of the surveyor, and to the fault of the party. See page 396, and between abandonment of a warrant o n which the money has been paid, and an application on which none has been paid, page 395.

It remains to notice the case of Diggs, v. Downing, 4 Serg. & Rawle, 348, on which the judge iffithe court below founded his Opinion, and certainly in the hurry of a trial that case was ¿not understood — such is the opinion of this court,- including the Chief Justice, who delivered that opinion. It was a practice sanctioned by many decisions,- that when a survey was completed, as far as running and marking the lines, and malting the Calculations,- and it was then discovered that land enough had not been included, the deputy surveyor included more land by protraction on paper,- so as to fill the warrant, and returned the' draft as protracted to the surveyor general’s office* and if the land taken in by protraction was unappropriated before, the party had title according to the draft returned. But it is the return, which in such case gives title. Sometimes the surveyor went to the ground and marked the lines of the part added, and this was the better course and in such case, the title was good, unless lost by some subsequent misconductof the owners, from time of survey, where the warant described the land, Diggs v. Downing, settled that when a survey was made on the ground* and being found too small, an addition was plotted to it, but never marked on the ground and not returned to the office of the surveyor general, such additional plotted part was not to be held against an. intervening warrant survey, and return patent and sale. It is apparent from the whole opinion, that if the deputy surveyor had gone and marked the lines including the addition, before any adverse right commenced, no negligence of the deputy surveyor would after that, unless very gross indeed* have destroyed the title of the owner of the first and descriptive warrant. Four years lying by, would not of itself have done it, nor a much longer time; according to Davis and Keeffer, if the adverse claimant had notice.

Judgment reversed and a venire de novo awarded.