Sweigart v. Richards

8 Pa. 436, 1848 Pa. LEXIS 108

• Court: Supreme Court of Pennsylvania
• Decided: July 3, 1848
• Status: Published

Opinion

Coulter, J.

The first error assigned is in admitting the evidence contained in defendant’s bill of exceptions. The evidence is a connected draft of a number of surveys, purporting to have been made by Bartram Galbraith, deputy-surveyor of the district, and the field-notes of the said surveys, and a large number of warrants on which the surveys were made.

It was proved that-these field-notes and the draft had been produced before the board of property, as evidence in a controversy between the heirs of Galbraith and Thomas Elder, and afterwards returned to Adams Eisher, Esq., counsel for Galbraith’s heirs, and by him delivered to James C. Carpenter, grandson of Galbraith, who was examined as a witness in the cause. Other testimony, given to prepare the way for the introduction of these papers as evidence, which is on the record, will, I presume, be fully set out by the reporter.

The draft, field-notes, and accompanying warrants, were offered in evidence, for the purpose of showing the southern boundary of the Rittenhouse, Richards, and Bull tracts; under one of which— the Aquila Richards tract — the plaintiff claims. The evidence was objected to, because the draft and field-notes were not sufficiently proved, and because the warrants did not apply to the land in dispute. It is necessary to observe, before considering the objection, that a survey was made on the Aquila Richards warrant, in 1774, and returned into the land-office in the same year, and a patent granted by the commonwealth to the plaintiff, for the same land, on the 24th July, 1815. The dispute, in this case, arises out of the uncertainty of the southern boundary of this tract, and will be determined by the true and accurate location of that boundary. The title to lands cannot be acquired or established by unofficial diagrams, drafts, or surveys. But such papers may often be extremely useful in fixing and designating doubtful boundaries. It has been an ancient custom of the courts to receive them in evidence for what they are worth, in illustrating a question of boundary. Thus, in the case of McCormick v. McMurtrie, 4 Watts, 192, it was ruled, that the field-notes and other official proceedings of a deputy-surveyor may always be given in evidence* to explain his acts; and in the case of Nieman v. Ward, 1 W. & S. 82, it was ruled that reputation and hearsay is such evidence as is entitled to respect, in a question of boundary, where the lapse of time is so great as to render it difficult to prove the original landmarks. In Payne v. Croft, 7 W. & S., it was decided that the field-notes of a deputy-surveyor were competent as evidence of boundary, and also that a connected draft, certified from the land-office, was competent evidence for the same purpose. A connected draft from the land-office is usually the work of a clerk, and derives all its value from the juxtaposition of the different surveys. But the ■ same work done by the original surveyor, if genuine, would seem to be a surer and more perfect guide as to boundary. Were, then, these field-notes and this connected draft the veritable work of Bartram Galbraith, the deputy who made the surveys, and returned the survey under which the plaintiff claims ? The papers have been produced here in court, and wear on their face the strongest appearance of authenticity and antiquity. They are covered with the rust of time, and are written in the strong, legible chirography which distinguished public surveyors and other public officers seventy years ago.

James C. Carpenter, the grandson of Bartram Galbraith, in whose possession these papers were, states that his grandfather died in 1804, from which the difficulty of obtaining the testimony of persons who have seen him write, will be at once perceived. But the witness, Carpenter, swears with undoubting confidence, that the field-notes and the draft with it, writing and figures, are the proper handwriting of Bartram Galbraith, the deputy-surveyor. He says he knows it from his writing in the family Bible, which is the family record, and which all his descendants regard as his genuine writing, and from many letters in the possession of his mother, written by Bartram Galbraith, her father. It is true that this court have decided that the witness who testifies from a comparison of handwriting must have the highest evidence of the authenticity of the standard paper, which would usually be that of some person who had seen the person write it, or evidence of equal authority. Now it appears to me that the family record, admitted and received by all the descendants as his genuine handwriting, is of as high authority and verity as a standard or test, as the evidence of a person would be who testified to the standard paper from having seen it written. In addition to this, there is the evidence of Richard M. Crain, who has been in the land-office for forty years, and who, from having seen the rStums of surveys of Bartram Galbraith, and his letters, all which are recorded at the capitol, and the foundation and evidence of numerous titles received and accepted in the land-office as his genuine writing, testifies to his belief that the field-notes and draft are in the proper handwriting of said Galbraith. And also the testimony of Thos. J. Rehrer, who has been in the land-office for a long time, to the.same effect.

In the judgment of this court, the papers were sufficiently authenticated to go to the jury as evidence on the question of boundary. The applicability of the warrants, and their juxtaposition to the land in dispute, was a matter of fact to be determined by the jury from the evidence, and not a matter of law to be ruled in the first instance by the court. They were also competent evidence for the same purpose, connected with the field-notes and drafts of Galbraith, who made the surveys.

The lines run and marked on the ground are the true survey; and although all the lines may not be found on the land, yet if the body of the lines are there, corresponding in data with the survey returned, the survey is valid, and authorizes a presumption that the other lines were actually run and marked, but have been effaced by time or tempest. But still more strongly are those lines good, if they have been resurveyed and marked before any intervening right accrues, which was done in the case in hand. The testimony fully proves that the survey made by Galbraith on the warrant under which the plaintiff claims, was made in 1774, and returned into the land-office, and is well marked round a considerable portion of the tract. But lines of that date are not found on the southern side, where the dispute about the boundary occurs. It appears, from the evidence, that a number of warrants were put into the hands of Galbraith in 17jf5, upon which he made surveys in that year, and above one hundred of these surveys are regularly returned into the land-office. Adopting the exact distance returned in the survey of 1774, the southern boundary of the tract in question would be near where the defendants below allege it to be, but where no marks are found on the ground, except those made by direction of the defendants, between twenty and thirty'years since. It is this circumstance which gives the field-notes and draft importance in the cause. In 1795, Galbraith, the same surveyor who made the survey of 1774, in making the surveys on the warrants put into his hands in 1795, conformed to the southern line of the tract in question, as we may presume he had run it in 1774, and then re-marked the line, which marks are still on the ground, although those of 1774 on that line have not been found. These marks were not discovered by the surveyor who made the survey under which the defendant claims. In 1815 or 1816, the mode he adopted to fix the southern boundary of the survey in question, on Galbraith’s survey, was to run the exact length of the lines from the north, and allowing two perches over, fixed there the line under which the defendant claims, and which he alleges is the true southern boundary of the Richards tract. The return of survey of 1774 and the patent corresponds, in course and distance of the southern boundary, with the survey made by Galbraith in 1795. And the returned survey and patent- correspond with the Galbraith south line, as found marked on the ground, with this exception, that the distances in some of the lines leading down to this southern or black line, as it has been called, require to be lengthened beyond the perches mentioned in the patent. But this is a circumstance so common in the early surveys, as to be of itself of small moment; The purchaser of land from the commonwealth, is bound to take notice of the lines on the ground, because they are the true survey.

There is not much force in the argument ingeniously urged by the counsel for the plaintiff in error, that the field-notes and draft of Galbraith were not returned to the land-office so as to affect purchasers from the state with notice. But if two or more witnesses belonging to the ancient days of the commonwealth had been, found who were present at the survey of 1774, and testified that they saw Galbraith run the southern boundary of the tract, and testified to its location, by marked trees or stones, which time had obliterated, that evidence would not be of record, yet who could doubt its competency as evidence of boundary ?

The court correctly instructed the jury that the true evidence of the boundary of the land was the survey made on the ground; and as affording some evidence, at least, of where that boundary as surveyed by Galbraith in 1774 was, the papers were properly received in evidence and commented on by the court.

The fifth and sixth points of the defendant below, relate to a> different aspect of the case, the answers to which are assigned as error.

Several of the witnesses testified that the plaintiff Richards had stated to them, that when he first went on the land, he thought the line marked by.the survey of the defendant below, in 1816, was his southern line, but he did not know where the true line was. The court were requested to charge the jury that they could not ’ go over that line, but must ■ consider it admitted as the true line.

If two persons whose surveys adjoin, dispute about the true boundary between them, but in order to settle the controversy agree upon a line, and mark it as the boundary between them, and take possession accordingly, such line would be good and valid though established by parol. But nothing of that kind existed in this case. The mere declarations of an individual, who professed to be uninformed on the subject, that he believed the line to be at such a place, were of no moment, unless it had been shown that the defendant, in consequence of these declarations, and relying upon them, had purchased the land in dispute. In such ■category they would require a more particular consideration.

In answer to the defendant’s sixth point, the court charged the jury, that if the facts were as assumed in it, they instructed them :that it was true, and they answered affirmatively. But the court ' tell the jury that they must take the whole evidence into considera- ■ tion, and pointed their attention to various facts and circumstances in the testimony; and formally state the law correctly on this point, as follows: “If, however, you are satisfied from the evidence that the plaintiffs encouraged them (the defendants) to expend their labour on this land, as contended for by defendants, then to that extent (the extent of the land cleared in the Galbraith line), the plaintiffs are precluded from recovering.”

We perceive no error in the record prejudicial to the plaintiff in error.

Judgment affirmed.