Grier v. Penna. Coal Co.

18 A. 480, 128 Pa. 79, 25 W.N.C. 85, 1889 Pa. LEXIS 771

• Court: Pennsylvania Court of Common Pleas, Lackawanna County
• Decided: October 7, 1889
• Docket: No. 388
• Status: Published

Opinion

Opinion,

Mb. Justice Williams :

There are three blocks of surveys whose lines are involved in this controversy. The first on the ground is the Chapman block, which was surveyed by the deputy surveyor in May, 1793. The next is the Branham block, in which the plaintiffs’ tracts lie, which was surveyed in May, 1794. The third and youngest is the block of which defendant’s tracts are a part, which was surveyed in October 1794.

There- is no dispute over the general location of either of these blocks, but the controversy relates to the north line of the Branham, which is the boundary between the two blocks of 1794. The plaintiffs own the Christiana Branham survey, at the northwest corner of the Branham block, and the Lewis Farmer lying next east of it. The defendant owns the Morgan and the Wain surveys, lying directly north of the plaintiffs, in the southwest corner of the younger block. There is no original boundary line between them on the ground, and the object of this litigation is to establish one.

The theory upon which the action was brought was, that the north line of the Branham block must be ascertained by running a line westwardly from the northwest corner of the James Chapman, upon the course called for by the returns of survey, to the west side of the block. This would add about fifty-seven rods to the length of all the warrants in the northern tier of the Branham block, over that shown on the official surveys, and reduce to the same extent the length of the warrants lying north of it. The defendant alleged that the line should be run from the northwest corner of the Christiana Branham, eastwardly upon the course called for, to the west line of the James Chapman; and it alleged, and the jury have found, that the northwest corner of the Branham was an original corner marked upon the ground in 1794, as returned by the deputy surveyor. This line is about fifty-seven rods south of that claimed by the plaintiffs. The land in controversy lies between these lines along the north side of the Branham and the Farmer-tracts.

On the trial, the plaintiffs proposed that in the event of the jury finding the northwest corner of the Christiana Branham to be as contended for by the defendant, the boundary line should be run diagonally from the northwest corner of the Chapman to the place of the Chestnut oak at the northwest corner of the Branham.

It will thus be seen that the rights of the parties depend wholly on the proper adjustment of the north line of the Bran-ham tract, which is also the north line of the block in which it lies. How is this line to be run ? In 'replying to this question, it should be borne in mind that the location of the Branham block is not controverted. On the other hand, it is well located by lines on the ground, the original character of which is not denied. Nor is the location of the Christiana Branham as the northwest member of the block controverted. It has an original south line, and west line. Its east and north lines are not on the ground. If, however, it has a northwest corner, that fixes the western end of the north line, and, unless controlled by monuments on the ground, the survey of the Christiana Bran-ham can be readily closed by running east on the proper course to a point where the line would be intersected by a line running north from the southeast corner. The point of intersection would supply the northeast corner and complete the survey of the tract.. This is in accordance with the well settled rule that resort is to be had first to the work of the surveyor, the marks on the ground; next, and in the absence of these, to calls for adjoiners; then, last, to the courses and distances of the survey as returned.

Assuming the northwest corner, which the jury has found tobe at the place of the chestnut oak, we have two well marked lines, the south and west, and three established corners, for the Christiana Branham. From these the northeast corner maybe fixed with absolute accuracy, and is fixed, as matter of law, unless some other monument of the original survey requires a change in the direction of the north line from that returned by the surveyor: Wharton v. Garvin, 34 Pa. 340. But the plaintiffs allege the existence of a monument that should change the direction of the north line from that given by the official draft, and carry it in a diagonal course in the direction of the northwest corner of the James Chapman, to which it is insisted the north line of the Branham block should be extended. The argument in favor of this method rests on the fact that the Elizabeth Singer tract, which is at the northeast corner of the Branham block, calls for the James Chapman on the east. This, it is urged, makes the Chapman a monument of the survey of the Singer, and, what is much more, makes the northwest corner of the Chapman the northeast corner of the Singer, and so the northeast corner of the Branham block. This leads us to consider, first, the meaning of the word monument, as applied to the survey of a tract of land; second, the difference between a monument and a call; and third, whether the northwest corner of the Chapman is a monument of the Singer survey or of the Branham block.

A survey is made to inclose a tract of land by a visible line. If it do not wholly inclose the tract, it must furnish the data from which the inclosure may be completed, or it is not a good survey. The same thing is true of a block of surveys. If the lines do not inclose the block, they must furnish such marks as shall fix with certainty enough of its lines or corners to make the inclosure practicable. The marks of the survey that show the presence of the surveyor on the lines, and what he did to fix the place of the tract or block on the ground, are the monuments of his work by which his footsteps may be followed in later years. These are ordinarily marks made by him on the trees growing in or near the lines run and corners made. If a black oak is called for as a corner at a given point, and upon subsequent examination a black oak tree is found at the proper place bearing the marks made by surveyors to indicate a comer, and these marks are of the proper age, that tree with its marks i& a monument of the original survey and fixes the precise location of the corner. So, natural objects, such as the bank of a stream, the shore of a lake, a precipice or ledge of rocks, a fountain or spring of water, may be adopted by the surveyor and returned so as to make them monuments fixing the location of lines and corners. They are of a permanent character, such as may be relied on to furnish evidence in subsequent years of the presence of the surveyor on the ground and of the lines and courses run and returned by him. But there were no monuments of any kind showing the presence of the surveyor on the north and west lines of the Chapman, for he had not been there. Those lines were not run. What should stop the Singer on that side and form its eastern boundary ? The Chapman being an older survey and entitled to be first filled, is called for as the boundary. In the absence of actual lines on the ground, the prior right of the Chapman to its complement of land, in accordance with its lines as returned into the land office, limits the rights of the holder of the Singer. In other words, the Singer can go to the Chapman, but wherever the west line of the Chapman may be ascertained to be, there the Singer stops. There is a certain secondary sense in which the call for the Chapman may be said to make it a monument of the Singer, because being the senior tract it controls the eastern boundary of the Singer. The Singer cannot invade its lines, but must stop at its western boundary, when that is ascertained. But it is the tract as an adjoiner, not any work upon the ground on its west line, that stops the Singer. If in 1794 the deputy surveyor had actually run and marked the east line of the Singer, at a distance of one rod or any other distance west of where the west line of the Chapman is now run, the marked line would override the call and the Singer would stop where the monuments of the survey fixed the line. In the absence of marks, the call is operative and takes the Singer to the Chapman, without regard to the official distances.

We come now to our third inquiry, whether the northwest corner of the Chapman is a monument of the Singer or of the Branham block. In considering tins question, we must keep in mind the following facts: (a) that neither the north nor the west lines of the Chapman, nor its northwest corner, had been marked upon the ground when the Singer tract was located ; (5) that the east line of the Singer was not run by the deputy surveyor, and had no monuments, made or adopted, to mark its site; (e) the return of survey of the Singer does not profess to adopt, or in any manner refer to, the northwest corner of the Chapman, either as its own northeast corner, or for any other purpose. The official draft of the Singer shows that the deputy surveyor returned it as adjoining the Joseph Bunn, the Thos. Conarrow and the James Chapman on the east, the Abraham Singer and the Jacob Steinheiser on the west, and the Ebenezer Branham on the south; but on the north, neither adjoiner, nor any work on the ground belonging to itself or any other tract is called for. Its north line is protracted westerly, as a dotted line, indicating that it is continuous with the north line of the Steinheiser and the Branham block, but there is nothing else to guide in fixing the location of the north line except the distances. The northwest corner of the Chapman is now fixed by the intersection of the north and west lines of the survey. This method of locating it is as satisfactory as though the surveyor had originally marked trees at the spot. It affords assurance of mathematical accuracy in its result. The corner thus established may be thereafter a monument, in an important sense, helping to fix the west line of the tract and thereby fixing the eastern limit of the Singer, but it has no other relation to that tract. Not having been adopted or called for by the Singer survey, its offices are confined to the lines whose intersection locates it, and the tract which it thus helps to inclose. "We conclude therefore that the northwest corner of the Chapman is in no sense a monument of the Singer or Branham surveys, and that it is to be left out of consideration in ascertaining the north line of the Christiana Branham and the Lewis Farmer tracts on which this case depends. The true way, therefore, in which to complete the survey and inclose the Branham block was to start from the northwest corner of the Christiana Branham, and run easterly on the course called for by the return of survey.

Where was the northwest corner of the Branham? That question was submitted to the jury upon the evidence, and they have found the corner to be at the place of the maple sprouts, as the place where the original chestnut oak stood. Adopting this as the northwest corner, and the jury were rightly instructed that they should run the north line by following the courses called for in the return of survey. There were no monuments made for the Branham surveys to disturb this mode of inolosure. There were no monuments made for any other survey adopted or referred to by the surveyor, so as to make them marks or monuments of the Branham surveys. There was no call for an adjoiner on the north, to carry the line to the work of older surveys in the absence of marks of its own. There being neither mark nor call to control the line, it was to be run according to its own courses and distances : Darrah v. Bryant, 56 Pa. 69; Boynton v. Urian, 55 Pa. 142; Wharton v. Garvin, 34 Pa. 340. Had the west line of the Chapman been marked on the ground, and its northwest corner returned as the northeast of the Singer, the plaintiffs’ mode of running the north line of the Branham block in a diagonal course to the northwest corner of the Christiana Branham, would be entitled to consideration, but an adopted line or corner must be a real line or corner to become a monument of the lines of the adopting warrant: Glass v. Gilbert, 58 Pa. 267.

The eleventh assignment is more serious. The learned judge, presiding at the trial in the court below, instructed the jury “ that after a survey or block of surveys had been returned and accepted and remained in the land office for twenty-one years, it was conclusively-presumed that it was actually run upon the ground as returned, whether marks were found upon the ground or not, and whether there was evidence that the surveyor had been on the ground or not.” If this stood alone we should think it possible that the jury had been misled by it into thinking that the presumption based upon the return of survey was better evidence than the work on the ground, and should be relied upon in fixing the lines and corners, notwithstanding the marks of an actual survey; but the jury were clearly and repeatedly told that the lines originally run on the ground constituted the true survey, and controlled the calls and the courses and distances returned by the surveyor. They were thus instructed that the lines on the ground controlled those on the return of survey, and were to be looked to, -so far as they were found, as the highest and controlling proof for the purposes of location. Subject to this instruction, that complained of was unobjectionable. Presumptions are resorted to for the purpose of supplying the want of positive proof. When positive proof is available there is no room for the presumption. The application of the doctrine of a presumption of an actual survey after the lapse of twenty-one years, was first suggested by Duncan, J., in Lambourn v. Hartswick, 13 S. & R. 113, but in that case part of the survey was actually on the ground, and the presumption was suggested as furnishing a basis for completing the survey. This suggestion was adopted by Kennedy, J., in Nieman v. Ward, 1 W. & S. 68, and applied as a rule of law to the location of an improvement warrant which described the land applied for as being a large bottom lying on both sides of the Cockalamus creek above the claim of Joneá. The warrantee and his vendees had been in possession for many years. Locating the warrant against Jones’s claim, as an adjoiner called for, the presumption supplied, as against junior surveys, the remaining lines as returned by the deputy surveyor. In Collins v. Barclay, 7 Pa. 67, it was applied to a survey which was one of a block of fifty-two adjoining surveys, the block being well located as a whole by work on the ground. Its application in Ormsby v. Ihmsen, 34 Pa. 462, was to the north line of a survey whose other lines were not in controversy, and where the conflict was between a call, and the courses and distances. The courses and distances prevailed over the call by the aid of the presumption, and the case has been severely criticised and qualified in Packer v. Schrader M. & M. Co., 97 Pa. 379, and in Salmon Creek Lumber and Mining Co. v. Dusenbury, 110 Pa. 446. The rule is well stated by Gobdon, J., in the latter case as follows: “ For the purpose of quieting titles and settling disputes that must otherwise inevitably arise from chamber surveys, a presumption such as stated is raised in favor of their location on the ground. But that presumption goes no further, for they must have after all actual and not merely presumptive calls, so that their location can be certainly fixed, otherwise they are good for nothing.” In the present case we have two original lines, the south and the west, well marked on the ground, for the Christiana Branham. We have also three original corners, the southeast, the southwest, and the northwest found by the jury. The inclosing lines, in the absence of marks or calls to take them away, are presumed to have been run as returned by the surveyor, although no trace of such lines can be found on the ground. The north and east lines should therefore be run on the official courses to their intersection at the northeast corner, thus completing the inclosure. The survey is thus made by following the lines returned to the land office, where marks are not found, because of the conclusive presumption that a line not on the ground was nevertheless run as returned. The instructions of the judge in the court below were substantially in accordance with the rule as we understand it when fairly taken together. From an examination of the evidence we think the verdict was just, and fully justified by the facts before the jury.

Judgment affirmed.