Opinion,
Mb. Justice Williams :
This case was before us last year, and may be found reported in 121 Pa. 387. We are not asked to reconsider or qualify anything then said, but to consider questions raised on the last trial.
The land in controversy is claimed by the company plaintiff as part of a survey made in 1785, in the warrantee name of Richard Whitehead, now owned by it. The defendant is in under a recent warrant and survey, and insists that the true location of the Whitehead does not include this land. The location of the Whitehead is therefore conclusive of the rights of the parties. It cannot be located by marks on the ground made by the deputy-surveyor to witness the lines, for no such marks are found on any of its boundaries. Resorting next to the adjoiners, we find the Whitehead calls for the Bryan, a survey of the same [649]*649date, on the north. We must therefore locate the Bryan, and, when this is done, locate the Whitehead by it, and along its south line. Turning, then, to the Bryan, we find two theories of location presented by the evidence: That of the plaintiff, which rests on the white pine corner at its extreme northern end and on the William King, as the adjoiner called for under the name of Dougherty, in the angle- on the west side. The other, presented by the defendant, rests on marks found upon what is claimed to be the east line, a marked tree found on the northwest line, running from the pine in the direction of the King, and upon a natural monument, a cranberry marsh, called for by the official return as lying within its lines and near its southern boundary. The question, which of the two extreme northern corners contended for was the place of the white pine returned by the deputy surveyor, was a controlling one; for from this corner, when settled upon, it was easy to locate the survey, and with it the Whitehead. Upon this question,—the location of the white pine, and the line south from it,—the plaintiff made its offers, the rejection of which is alleged as error in the first and second assignments.
It is very clear that, in a contest between two adjoining surveys, the junior must always give way. It may have a well-marked line of the proper age for its own survey inclosing it, but the senior will not be affected by it. It will reach to its own lines, appropriating all within them, and the junior survey will be restricted to what may be thus left for it. It is therefore correct to say that the lines of a younger survey cannot change, alter, or affect those of an older one when they come in conflict. Here the question raised is quite different. The lines of the younger survey, calling for the older as an adjoiner, are offered as showing the acts and declarations of a deceased deputy surveyor as to the location of the line of the older. There is no conflict between them. The younger survey asks nothing adverse to the older. The purpose for which the evidence is offered is not to disturb, but to sustain, the lines of the senior survey, by showing that the sureyor who located the younger tract recognized the lines of the older one as being where it is now claimed they are, and acted upon that belief in doing his work.
The McKissick and the Elliott were surveyed in 1797. The [650]*650former was well located by work on the ground. The latter was located with equal certainty by its adjoiners. It called for the Bryan on its west side, from the McKissiek to the white pine at the extreme north corner, and again on the south, extending between the London surveys and the Bryan to the King. At its interior corner a pine is called for, where the Bryan also calls for a pine. If, now, the spot where the survey of the Elliott places the pine can be ascertained, it shows wdiere the surveyor who located the McKissiek and the Elliott believed the pine of the Bryan to be, when he did his work in 1797. The fact that no marks of the Elliott were found along these lines, does not show that the surveyor was not upon them. The London surveys and the Bryan were older than the Elliott, and the latter could have no lines except those of the older surveys it adjoined along its entire line of contact with them. The legal presumption that the tract was surveyed as returned must prevail, where there is nothing on the ground to overcome it. The mere failure in surveying a younger tract to re-mark, or to mark in any manner, the line of an older survey, called for as an adjoiner, does not weaken the legal presumption in the slightest degree. If this be so, the offer should have been admitted as showing how the deputy surveyor, in 1797, located the pine corner and the east and north lines of the Bryan, when on the ground to locate the McKissiek and the Elliott. It does not follow that his opinion was correct, but its value is for the jury. He may have been mistaken. If there are marks on the ground that locate the lines elsewhere, the marks must control; but, if there are no sufficient evidences of original lines to locate them by, then the opinions of deceased surveyors and deputy surveyors, as shown by their acts and declarations on the ground, are some evidence upon the question of their true location: Sweigart v. Richards, 8 Pa. 436; Bellas v. Cleaver, 40 Pa. 268; Kramer v. Goodlander, 98 Pa. 354.
The second assignment is sustained for the same reasons. The surveys embraced in the offer are of much more recent date, but are nevertheless ancient, being of the ages of 71, 68, and 35 years, respectively, at the time of the trial. They show the official work of different deputy surveyors, made long before the present controversy began, in the location of warrants upon the ground which called for the Bryan or the Whitehead as [651]*651adjoiners. They may have been mistaken in their location of the east and south lines of these warrants, and the value of their opinions must .be determined, as the value of the opinions of a witness called to the stand would be determined; but the evidence should have been admitted.
The eighth assignment raises the only other question to which it is important to advert. The theory of location presented by the plaintiff depended, in part, on the King, which it was alleged was. the survey intended by the call for Dougherty, in the angle on the west of the Bryan. Upon this sdbject the court instructed the jury that, in case they should conclude that the King was the survey intended by the call for Dougherty, “ it would be some evidence of location. If that call for Mr. Dougherty was a call for the King survey, and if the King survey is located there, that call would furnish some evidence of the location of the Samuel Bryan.” This was true, but it was not a full presentation of the subject. The general rule is that a survey, in the absence of marks that restrain it, goes to its adjoiners and may be located by them. If, therefore, the jury had found, as this instruction supposed it possible they might find, that the King was called for as an adjoiner on two sides, and was located on the ground as contended for by the plaintiff, this would take the Bryan to the King, unless it was stopped short by work on the ground made for its own lines. Such a finding as was contemplated by this instruction would have located the Bryan against the King, and been a substantial adoption of the plaintiff’s theory of location. It was not enough to say, therefore, that a finding for the plaintiff as to the location of the King, and its identity with the Dougherty called for, was “ some evidence of the location of the Samuel Bryan; ” for such a finding would locate the west side of the Bryan, in the absence of marks on the ground to override the call.
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Opinion,
Mb. Justice Williams :
This case was before us last year, and may be found reported in 121 Pa. 387. We are not asked to reconsider or qualify anything then said, but to consider questions raised on the last trial.
The land in controversy is claimed by the company plaintiff as part of a survey made in 1785, in the warrantee name of Richard Whitehead, now owned by it. The defendant is in under a recent warrant and survey, and insists that the true location of the Whitehead does not include this land. The location of the Whitehead is therefore conclusive of the rights of the parties. It cannot be located by marks on the ground made by the deputy-surveyor to witness the lines, for no such marks are found on any of its boundaries. Resorting next to the adjoiners, we find the Whitehead calls for the Bryan, a survey of the same [649]*649date, on the north. We must therefore locate the Bryan, and, when this is done, locate the Whitehead by it, and along its south line. Turning, then, to the Bryan, we find two theories of location presented by the evidence: That of the plaintiff, which rests on the white pine corner at its extreme northern end and on the William King, as the adjoiner called for under the name of Dougherty, in the angle- on the west side. The other, presented by the defendant, rests on marks found upon what is claimed to be the east line, a marked tree found on the northwest line, running from the pine in the direction of the King, and upon a natural monument, a cranberry marsh, called for by the official return as lying within its lines and near its southern boundary. The question, which of the two extreme northern corners contended for was the place of the white pine returned by the deputy surveyor, was a controlling one; for from this corner, when settled upon, it was easy to locate the survey, and with it the Whitehead. Upon this question,—the location of the white pine, and the line south from it,—the plaintiff made its offers, the rejection of which is alleged as error in the first and second assignments.
It is very clear that, in a contest between two adjoining surveys, the junior must always give way. It may have a well-marked line of the proper age for its own survey inclosing it, but the senior will not be affected by it. It will reach to its own lines, appropriating all within them, and the junior survey will be restricted to what may be thus left for it. It is therefore correct to say that the lines of a younger survey cannot change, alter, or affect those of an older one when they come in conflict. Here the question raised is quite different. The lines of the younger survey, calling for the older as an adjoiner, are offered as showing the acts and declarations of a deceased deputy surveyor as to the location of the line of the older. There is no conflict between them. The younger survey asks nothing adverse to the older. The purpose for which the evidence is offered is not to disturb, but to sustain, the lines of the senior survey, by showing that the sureyor who located the younger tract recognized the lines of the older one as being where it is now claimed they are, and acted upon that belief in doing his work.
The McKissick and the Elliott were surveyed in 1797. The [650]*650former was well located by work on the ground. The latter was located with equal certainty by its adjoiners. It called for the Bryan on its west side, from the McKissiek to the white pine at the extreme north corner, and again on the south, extending between the London surveys and the Bryan to the King. At its interior corner a pine is called for, where the Bryan also calls for a pine. If, now, the spot where the survey of the Elliott places the pine can be ascertained, it shows wdiere the surveyor who located the McKissiek and the Elliott believed the pine of the Bryan to be, when he did his work in 1797. The fact that no marks of the Elliott were found along these lines, does not show that the surveyor was not upon them. The London surveys and the Bryan were older than the Elliott, and the latter could have no lines except those of the older surveys it adjoined along its entire line of contact with them. The legal presumption that the tract was surveyed as returned must prevail, where there is nothing on the ground to overcome it. The mere failure in surveying a younger tract to re-mark, or to mark in any manner, the line of an older survey, called for as an adjoiner, does not weaken the legal presumption in the slightest degree. If this be so, the offer should have been admitted as showing how the deputy surveyor, in 1797, located the pine corner and the east and north lines of the Bryan, when on the ground to locate the McKissiek and the Elliott. It does not follow that his opinion was correct, but its value is for the jury. He may have been mistaken. If there are marks on the ground that locate the lines elsewhere, the marks must control; but, if there are no sufficient evidences of original lines to locate them by, then the opinions of deceased surveyors and deputy surveyors, as shown by their acts and declarations on the ground, are some evidence upon the question of their true location: Sweigart v. Richards, 8 Pa. 436; Bellas v. Cleaver, 40 Pa. 268; Kramer v. Goodlander, 98 Pa. 354.
The second assignment is sustained for the same reasons. The surveys embraced in the offer are of much more recent date, but are nevertheless ancient, being of the ages of 71, 68, and 35 years, respectively, at the time of the trial. They show the official work of different deputy surveyors, made long before the present controversy began, in the location of warrants upon the ground which called for the Bryan or the Whitehead as [651]*651adjoiners. They may have been mistaken in their location of the east and south lines of these warrants, and the value of their opinions must .be determined, as the value of the opinions of a witness called to the stand would be determined; but the evidence should have been admitted.
The eighth assignment raises the only other question to which it is important to advert. The theory of location presented by the plaintiff depended, in part, on the King, which it was alleged was. the survey intended by the call for Dougherty, in the angle on the west of the Bryan. Upon this sdbject the court instructed the jury that, in case they should conclude that the King was the survey intended by the call for Dougherty, “ it would be some evidence of location. If that call for Mr. Dougherty was a call for the King survey, and if the King survey is located there, that call would furnish some evidence of the location of the Samuel Bryan.” This was true, but it was not a full presentation of the subject. The general rule is that a survey, in the absence of marks that restrain it, goes to its adjoiners and may be located by them. If, therefore, the jury had found, as this instruction supposed it possible they might find, that the King was called for as an adjoiner on two sides, and was located on the ground as contended for by the plaintiff, this would take the Bryan to the King, unless it was stopped short by work on the ground made for its own lines. Such a finding as was contemplated by this instruction would have located the Bryan against the King, and been a substantial adoption of the plaintiff’s theory of location. It was not enough to say, therefore, that a finding for the plaintiff as to the location of the King, and its identity with the Dougherty called for, was “ some evidence of the location of the Samuel Bryan; ” for such a finding would locate the west side of the Bryan, in the absence of marks on the ground to override the call. It may be, as is suggested by counsel for the defendant, that such a finding would locate the Bryan in such a manner as to exclude the land in controversy; but that was for the jury, and we cannot say that the plaintiff was not injured by the instruction complained of.
The question raised by the fourth assignment has been considered in what has been said upon the first and second assignments, but another word may not be out of place as to the [652]*652adequacy of the answer complained of. The plaintiff asked the court to charge that “ the call of a younger survey for an older survey is some evidence of where the older survey is located; and this evidence becomes stronger as greater time elapses from the location of the senior survey, thus destroying the primary evidence of where such survey was originally located.” The court replied: “ TMs, we say, is an abstract proposition, and it may be correct, or it may not, depending upon the circumstances of the case. There are circumstances under which a younger survey may be evidence of an older, and there may be circumstances under' which it may not be.” But how was it as to the case trying ? What were the jury to understand as to their duty? Were the “circumstances” such as to justify them in applying the general doctrine of the point to this case, and treating the junior surveys as some evidence bearing on the question of the location of the Bryan ? Or, were the circumstances of this case of that sort that deprived the younger surveys of any value as evidence on that question? How were they to tell ? The answer was neither an affirmance nor a denial of the proposition of the point, as it was applicable to the case trying, and it left the jury with no definite instruction upon the question raised.
Judgment reversed, and venire facias de novo awarded.