The opinion of the Court was delivered by .
Kennedy, J.
The great question presented on the triál of this cause in the court below was, whether the survey, made on the warrant in the name of Robert Ramsey, included the land in dispute or not. If it did, the plaintiff there had no right whatever to recover it from the defendant. On the contrary, if it did not, the title of the plaintiff being prior in date to the defendant’s settlement on the land, and the only title shown from the commonwealth for it, entitled him to the recovery of it. A number of errors have been assigned, but the most of them relate to the instruction which was given by the court to the jury, either in their general charge, or in their answers to points submitted to them by the parties respectively, on the question whether the Ramsey survey included the land in dispute or not. And, excepting on this question, we think that the instruction of the court, and their answers given to the jury, on the points submitted by the parties-, were right. But as regards it, we are of opinion that the court misled the jury, by presenting the evidence given, which tended to show that the survey, made in pursuance of Ramsey’s warrant, embraced the land in controversy, under a different aspect from that in which the law requires that it should be viewed in the case of an ancient survey. Ramsey’s survey having been shown to have been made in July 1774, in pursuance of a warrant granted to him by the commonwealth in, the month of June preceding, must be regarded as an ancient, survey. In 1784 it was returned into the surveyor general’s office; and from that time down to 1837 the .land in question seems,to have been considered and denominated Ramsey’s land by those living’in the vicinity of it; and among the number who so considered it, was, as appears from the evidence, Jacob Marks himself, the warrantee under whom the plaintiff below now claims the land. From the date of the Ramsey survey, the length of time' is three times more than sufficient to raise an absolute and conclusive presumption of law, which cannot be rebutted, that the survey was duly and regularly made by the artist’s having gone on the ground and run and measured the lines of it. But after so great a lapse of time, it is not to be expected that witnesses, who were present at the making of the survey, can be produced to prove its actual location on the ground. Nor ought it to be considered at all extraordinary, that in such a case as the present, no positive and direct testimony has been given by the defendant below of marks having been actually made by the surveyor on. the ground at the time of. [79] his making the survey in 1774. The return .of the survey made into the surveyor general’s office, and a lapse of twenty-one years afterwards, without any attempt being made during that interim to contravene or take exception to it, is conclusive evidence that it was regularly made. And after so great a length of time as ran around in this case, say sixty-four years, circumstantial evidence, tending to show the probability that the survey made under Ramsey’s warrant covered the land in dispute, was sufficient, unless repelled by evidence showing the location of it on other land, and was all that ought to have been required. Now, did not the evidence given on the part of the defendant below show this ? In the first place, it would seem from it that the land in dispute answers, with .reasonable certainty, to the land called for by the description contained in the Ramsey warrant. It lies on the north branch of the Cockalamus. creek, and on both sides of the creek, as mentioned in the warrant. It also lies above Jones’s claim, and includes a large bottom, according to. the call of the warrant, on which the defendant has his dwelling-house and resides with his family. And near to this were seen, some thirty years ago, as testified to by two witnesses, the remains of an ancient small house, which would seem to correspond with Ramsey’s improvement called for in the warrant.
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The opinion of the Court was delivered by .
Kennedy, J.
The great question presented on the triál of this cause in the court below was, whether the survey, made on the warrant in the name of Robert Ramsey, included the land in dispute or not. If it did, the plaintiff there had no right whatever to recover it from the defendant. On the contrary, if it did not, the title of the plaintiff being prior in date to the defendant’s settlement on the land, and the only title shown from the commonwealth for it, entitled him to the recovery of it. A number of errors have been assigned, but the most of them relate to the instruction which was given by the court to the jury, either in their general charge, or in their answers to points submitted to them by the parties respectively, on the question whether the Ramsey survey included the land in dispute or not. And, excepting on this question, we think that the instruction of the court, and their answers given to the jury, on the points submitted by the parties-, were right. But as regards it, we are of opinion that the court misled the jury, by presenting the evidence given, which tended to show that the survey, made in pursuance of Ramsey’s warrant, embraced the land in controversy, under a different aspect from that in which the law requires that it should be viewed in the case of an ancient survey. Ramsey’s survey having been shown to have been made in July 1774, in pursuance of a warrant granted to him by the commonwealth in, the month of June preceding, must be regarded as an ancient, survey. In 1784 it was returned into the surveyor general’s office; and from that time down to 1837 the .land in question seems,to have been considered and denominated Ramsey’s land by those living’in the vicinity of it; and among the number who so considered it, was, as appears from the evidence, Jacob Marks himself, the warrantee under whom the plaintiff below now claims the land. From the date of the Ramsey survey, the length of time' is three times more than sufficient to raise an absolute and conclusive presumption of law, which cannot be rebutted, that the survey was duly and regularly made by the artist’s having gone on the ground and run and measured the lines of it. But after so great a lapse of time, it is not to be expected that witnesses, who were present at the making of the survey, can be produced to prove its actual location on the ground. Nor ought it to be considered at all extraordinary, that in such a case as the present, no positive and direct testimony has been given by the defendant below of marks having been actually made by the surveyor on. the ground at the time of. [79] his making the survey in 1774. The return .of the survey made into the surveyor general’s office, and a lapse of twenty-one years afterwards, without any attempt being made during that interim to contravene or take exception to it, is conclusive evidence that it was regularly made. And after so great a length of time as ran around in this case, say sixty-four years, circumstantial evidence, tending to show the probability that the survey made under Ramsey’s warrant covered the land in dispute, was sufficient, unless repelled by evidence showing the location of it on other land, and was all that ought to have been required. Now, did not the evidence given on the part of the defendant below show this ? In the first place, it would seem from it that the land in dispute answers, with .reasonable certainty, to the land called for by the description contained in the Ramsey warrant. It lies on the north branch of the Cockalamus. creek, and on both sides of the creek, as mentioned in the warrant. It also lies above Jones’s claim, and includes a large bottom, according to. the call of the warrant, on which the defendant has his dwelling-house and resides with his family. And near to this were seen, some thirty years ago, as testified to by two witnesses, the remains of an ancient small house, which would seem to correspond with Ramsey’s improvement called for in the warrant.
In addition to the evidence given, tending to prove all these facts, Mr M’Allister, a surveyor, who made some of the surveys in the neighbourhood of the land in dispute, and adjoining to it, testified that it was called Ramsey’s land for many years back, and that the draft of the survey made and returned in pursuance of Ramsey’s warrant suited the land in dispute; that the waters were correctly laid down on it, and further, that he found a birch tree, a corner, as he supposed or presumed, of the Ramsey survey, but was not certain that it.was the same; though it is evident that he thought it was. Other witnesses also testified that upwards of thirty years before the trial of the cause, they saw the letter R marked twice on a tree near the remains of the ancient house; which they.also spoke of as the initials.of a person’s name, which would answer to the name of Robert Ramsey, the warrantee ; and had, as they said, the appearance of having been made many years before they first saw it. According to the evidence, it also appeared that the. land in dispute had for many years been considered as Ramsey’s land,, and .was so regarded not only by the neighbours around, but likewise by the .deputy surveyors in their locating warrants of subsequent date to Ramsey’s warrant, by avoiding it so as not to include any part of it, and by calling for it as a boundary in the surveys made by them on the adjoining lands. And although some portion of this evidence was mere reputation or hearsay, yet such evidence is entitled to respect in cases of boundary, where the lapse of time is so .great as to render it difficult, .if not impossible, to prove the boundaries [80] by the existence of the primitive land-marks, or other evidence than that of hearsay. And in the present case, taking it in connexion with the other evidence referred to, after a lapse of more than sixty-four years, it was powerful evidence to show that the Ramsey warrant had been located by a survey upon the land in dispute, as no evidence was given, which went to repel it, by showing the slightest degree of probability that it was located elsewhere. But the court below, instead of instructing the jury to this effect, told them that the defendant, “ for the purpose of showing that the land in dispute was in reality the Robert Ramsey survey, had shown subsequent warrants to other persons and surveys upon them, calling for Robert Ramsey’s survey. This in law was not sufficient to constitute one. A survey must have been made upon the ground, to render it effectual. Now, was there an actual survey made on the ground in dispute on the Robert Ramsey warrant? What is the proof? It must come from the party alleging it. John Jones swears positively that twenty-five or thirty years ago old Mr P. Law, a surveyor, Esq. M’Knight and himself went on this very land, and searched for the lines upon the ground, and the result was that they could not find one single line, tree, or corner except the birch spoken of. Mr M’Allister was there in 1815, and he could not find any evidence of any marks, either lines or corners. Now this testimony, as far as we are able to judge, so far from proving a survey made upon this ground, proves the very reverse; that there never was one mark made on the ground on the Ramsey warrant. The other witnesses do not pretend to prove an actual survey. Webster proves that Marks, the warrantee of the plaintiff, showed him what was called the Ramsey line, and wanted to buy his right. This by no means proves of itself that it was the land actually surveyed on the Ramsey warrant; but to give it full force, it only proves that he thought it was. Heiser also proves that he thought the Ramsey survey was there. The opinion of a portion of the neighbourhood, that a tract of wild uncultivated land in the woods lies in a particular place, does not actually locate it there. It must have been surveyed and appropriated by that survey to the particular warrant on which it was made. David Reed says he saw a white oak corner, or a tree that he supposed to be a corner, when he was once hunting, but knows nothing of its age or date, and says positively he never knew a line of the Ramsey survey. James Burchfield saw a tree marked with two R’s, upwards of thirty years ago, and an old line running down the hollow, and up the side of the hill. But if I recollect M’Allister’s testimony, who was a surveyor, he also states, that he found a great deal of blazing, but it did not satisfy him that it was the old survey; and says that he made every reasonable search for the lines of the Ramsey survey on this land, and could not find them. Now, if this testimony be believed by you, it does seem to me that the [81] defendant is mistaken in supposing that.the survey was madepn the land in dispute. The location of this grant, in our opinion, under the facts, is not such as would be likely to lose every line, tree and corner on the survey, so that none could be found thirty years ago, nor since. ' It seems that the whole was.woods up. until the defendant went there in 1838, with his family, after, the plaintiff had located his warrant, and he must have known the, plaintiff’s right had attached, and if he remained he. must meet a lawsuit.” And in the conclusion of the charge, the court, after putting the questions again to the jury, “ Has the land in dispute been surveyed on the Ramsey warrant? Has this been proved to your satisfaction,” say, “ the court have no recollection of any testimony showing this fact to our satisfaction; but as the testimony strikes our mind, the very contrary seems to be pretty fully made out, that no actual survey ever was made on the ground in dispute under the Ramsey warrant.” From the charge of the court thus delivered to the jury, it will be perceived that each circumstance, for instance, the subsequent warrants and surveys made thereon, calling .for the land in dispute as the Ramsey survey, was presented singly to the jury, with the advice of the court, that it did not constitute. a survey. Now, although this was true, yet each circumstance treated in this way by the court, was at least some evidence that the land in dispute was included within the survey under Ramsey’s warrant, which was conclusively proved to have been made by the return thereof made into the surveyor general’s office in March 1784. And again, although each circumstance or fact taken singly might be very slight evidence, and wholly insufficient to produce a conviction in the minds of the jury, that the survey of Ramsey was made on the 'ground in dispute, yet when taken collectively with all . the other, circumstances and facts given in evidence, it might be very sufficient to satisfy the jury beyond all reasonable doubt that the survey was so located. Indeed, the birch corner, of which Jones speaks, and says he saw on the ground thirty years ago, if believed to be a corner of the Ramsey survey, would of itself furnish a beginning point, from which, by the aid of the .compass and chain, with a copy of the draft of the survey, the lines thereof could be easily found on the ground; though no other mark should ever have been made on them; and the survey would nevertheless be good. The testimony of Jones, in regard to this birch being, a corner of the Ramsey survey, was fortified by the testimony of Mr M’Allister, an artist, who says he found a birch corner, which he .supposes or presumes was a corner of the Ramsey survey, but is not certain that it was so. -But such, from what he says, is undoubtedly his belief; and being an artist, his belief, though not firmly fixed on the matter, ought to have weight. And here it may be remarked, that the court below seem to have overlooked this part .of. Mr [82] M’Allister’s testimony altogether, though important, for they have not mentioned it in their charge, but rather notice his evidence as if he had testified to nothing of the kind, but on the contrary had testified that, in his opinion, he could not, after a diligent search, discover a single trace or mark of a survey having been made under the Ramsey warrant on the ground in dispute. The language of the court, as to this, is “William M’Allister was there in 1815, and he could not find any evidence of any marks, either lines or corners.” But the testimony of Mr M’Allister is, “ That first birch I supposed to be a corner, but don’t know that it is the same birch on the land of the defendant. I presume it is the same, but am not certain.” The court also leave out of view the evidence showing that the land called for and described in the warrant, corresponds with reasonable certainty to the land in dispute, and, in short, would not seem to suit any other so well; for although in some respects other land near to the land in dispute might suit the calls of the warrant, yet the land in dispute is the only lánd which seems to meet the description contained in the warrant in every particular; for instance, it is the only land there suiting the calls of the warrant in other respects, upon which any thing like the ancient improvement mentioned in the warrant has ever been seen. According to the evidence, the waters as laid down upon the draft of the Ramsey survey, agree with the waters as found upon the land in dispute. This circumstance, as also others, though of weight, where the question- as to the location of the survey might otherwise be doubtful, seems to have escaped the notice of the court altogether. Seeing the court undertook to refer, in their charge to the jury, to some of the evidence and the circumstances testified to by the witnesses, in relation to the question whether the Ramsey warrant was laid on the land in dispute or not, it would have been right, in order to prevent the jury from being misled, to have brought every thing to their notice which had any bearing upon that question; and to have instructed the jury that they were to decide it, not by taking each circumstance singly into consideration, as they seem to have done in regard to those which they have noticed, and say whether it of itself, excluding all the rest from their view, was sufficient to settle the question the one way or the other; but, by taking all into their consideration at once, and under a combined view of the whole, giving to each circumstance its due weight in connexion with the others, make up their decision on the question. If this had been done, it is not easy to perceive how the jury could have come to any other conclusion on the question, than that the land in dispute was included in the Ramsey survey; for all the evidence given tending to show the location of this survey, pointed to this land, and no other. And, in truth, if the land in dispute cannot be held under the Ramsey warrant, it would seem, from the evidence, to be very clear that no other can. But that the [83] owner of the Ramsey warrant ought to have the land surveyed under it cannot be doubted; and if it be shown with probable certainty that the land in dispute is the same, the defendant below ought to be protected in his possession until called on to give it up to the owner of the Ramsey warrant.
Judgment reversed, and a venire facias de novo awarded.