The opinion of the court was delivered,
by Williams, J.
The whole controversy in this ease was in reference to the boundary line between the plaintiffs’ and defendants’ laird. The plaintiffs in error, who were defendants below, are the owners of the eastern portion of allotment No. 359, and the defendants in error — the plaintiffs below — are the owners of allotment No. 360 of the sub-division of the Bingham lands, lying east of the Allegheny river, in Rockland township. By deed, dated June 7th 1864, Elihu Chadwick became the owner in fee simple of both allotments; and, on the 1st of September 1860, he conveyed No. 359 to Snyder, who divided it into two parts, by a line running north and south, and conveyed the eastern part to Eisenbise, under whom the defendants below claimed title. On the 25th of July 1866, he conveyed four equal undivided fifth parts of allotment No. 360 to his co-plaintiffs below, William Lewis and [389]*389Sterling Bonsall, as tenants in common. They claimed that the division line between the allotments was the one marked on the ground, running from the south-west corner of No. 360, north 76 perches, and terminating between two hemlock stumps, on the bank of the Allegheny river, The defendants below, on the other hand, contended that a line running through a poplar tree, about 20 feet east of that claimed- by the plaintiffs, was the original subdivision boundary, and the true line between the allotments. The line claimed by the plaintiffs, as shown by the evidence, is a well-marked line, twenty-three years old, on which there are from twelve to fifteen marked trees. There are no marks on the line claimed by the defendants, except those on the poplar, which are thirty-one years old, and this line terminates on the Allegheny river, east of the two hemlock stumps -marked as witnesses. In support of this line, the defendants gave in evidence a draft furnished by Chadwick to Snyder, on the 29th of October 1864, of allotment No. 359, which he had conveyed to him by deed dated the 18th of September 1860, purporting to be copied from his map of re-surveys, which he made for the Bingham estate, in 1835-36. This draft shows the sub-division of No. 359, by a line running north and south, dividing it into two parts, the eastern, claimed by the defendants, containing 50 acres and 42 perches, and the western, 42 acres and 134 perches; and this sub-division, as appears by the draft, was made on the 7th of September 1860. The defendants also gave evidence tending to show that a line running from a white oak, at the south-west corner of Hanby’s land, being allotment No. 166, due north to the point which he claimed as the north-west corner of his tract, near a chestnut, would, if continued, run through the poplar, which they claimed as their line, and that the marks on the fitness trees, to the white oak, were of the same age with those on the poplar. To rebut this evidence, the plaintiffs showed by the testimony of three surveyors, that the only line marked on the ground was the line claimed by the plaintiffs; and that this line, if extended, would cross' Hanby’s east and west line at right angles, and strike the white oak at the south-west corner of his tract. They also showed, by the testimony of one or more-of the surveyors, that Hanby’s line was forty-one years old, and that the lower line of the tract conveyed to Snyder — allotment No. 359 — was twenty-three years old, corresponding in date with the disputed line claimed by the plaintiffs; that there were trees on the line claimed by the defendants, of sufficient age and size to have- been marked, if the line had been run on the ground, and that there was something like an old path by the poplar, and one of the blazed openings in the poplar indicated it. Snyder, under whom the defendants claimed title, testified that Chadwick showed him the line in 1860, and that he knew it five or six years before he bought, and that the [390]*390line- claimed by tbe plaintiffs was tbe line. But tbe defendants showed, by the testimony of two witnesses, if believed, that in 1861 or 1862, he pointed out the line by the poplar, and said that it was the line.
It is clear that, under the evidence, it was the province of the jury to determine which of the alleged lines was the division or boundary line between the plaintiffs’ and defendants’ land, and this question was left to their determination by the learned judge before whom the cause was tried. He instructed the jury, in substance, that if they should find, from the evidence, that there was only one line run and marked on the ground prior to the conveyance to Snyder, the question as to the line is settled. But if they should find that there are two lines on the ground, one run in 1835 or 1836, through the poplar, and another at a later date, well marked and defined, and about twenty-three years old, then they would have to determine which was the true line, and he submitted to the jury the question, whether the evidence satisfied them that there was such a line as the one claimed by the plaintiffs, and, if so, whether it was the line recognised by both Chadwick and Snyder at the time of the sale and conveyance to Snyder, and closed by saying: If you find there was a line through the poplar, as we have called to your attention, then the plaintiffs must satisfy you' that the later line is the one both parties intended. Evidence has been given on this point, and from it you find the fact. If the evidence is not sufficient to make it out, you will not presume it. Take all the evidence in relation thereto, and determine from that. The defendants below — the plaintiffs here — complain of these instructions, and of the refusal of the court to charge as requested in their 1st point, that the Chadwick draft, dated October 29th 1864, is evidence that the division between allotments 359 and 360 was established as early as 1835 or 1836, and there is no competent evidence in the case to show that it has been changed.
The first three assignments of error, it is admitted, raise but one question, and may, therefore, be considered together. The substance and burden of the complaint, which they are intended to embrace, is, that the charge, as a whole, was calculated to mislead the jury — that it was so expressed as to conceal from them the importance and legal effect of the fact that the division line was established in 1836, while it gave undue importance to the line run about the year 1843, and assumed throughout that it was proper for the jury to infer that this line must be eight years older than the marks upon it. In other words, the court permitted and encouraged the jury, as the plaintiffs in error allege, to presume that a line was run thirty-one years ago, because it is proved to have been marked twenty-three years ago. Is this objection to the charge well founded ? It assumes that the [391]*391division line between the tracts was actually run and marked on the ground in 1835 or 1836, of which there is not a particle of direct and positive evidence. If no such line was in point of fact run and marked on the ground, then this complaint of the charge is utterly groundless. The only evidence tending to show that such a line was run, is the memorandum on the draft furnished by Chadwick to Snyder, in 1864, which is in these words: “ Copied from my map of re-surveys, which I made for the Bingham estate, in 1835 and 1836,” and the marks upon the poplar tree of a corresponding date. This draft shows on its face the lines of the survey made on the 7th of September, 1860, when allotment No. 359 was sub-divided, and could not, therefore, have been an exact transcript from Chadwick’s map of re-surveys.
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The opinion of the court was delivered,
by Williams, J.
The whole controversy in this ease was in reference to the boundary line between the plaintiffs’ and defendants’ laird. The plaintiffs in error, who were defendants below, are the owners of the eastern portion of allotment No. 359, and the defendants in error — the plaintiffs below — are the owners of allotment No. 360 of the sub-division of the Bingham lands, lying east of the Allegheny river, in Rockland township. By deed, dated June 7th 1864, Elihu Chadwick became the owner in fee simple of both allotments; and, on the 1st of September 1860, he conveyed No. 359 to Snyder, who divided it into two parts, by a line running north and south, and conveyed the eastern part to Eisenbise, under whom the defendants below claimed title. On the 25th of July 1866, he conveyed four equal undivided fifth parts of allotment No. 360 to his co-plaintiffs below, William Lewis and [389]*389Sterling Bonsall, as tenants in common. They claimed that the division line between the allotments was the one marked on the ground, running from the south-west corner of No. 360, north 76 perches, and terminating between two hemlock stumps, on the bank of the Allegheny river, The defendants below, on the other hand, contended that a line running through a poplar tree, about 20 feet east of that claimed- by the plaintiffs, was the original subdivision boundary, and the true line between the allotments. The line claimed by the plaintiffs, as shown by the evidence, is a well-marked line, twenty-three years old, on which there are from twelve to fifteen marked trees. There are no marks on the line claimed by the defendants, except those on the poplar, which are thirty-one years old, and this line terminates on the Allegheny river, east of the two hemlock stumps -marked as witnesses. In support of this line, the defendants gave in evidence a draft furnished by Chadwick to Snyder, on the 29th of October 1864, of allotment No. 359, which he had conveyed to him by deed dated the 18th of September 1860, purporting to be copied from his map of re-surveys, which he made for the Bingham estate, in 1835-36. This draft shows the sub-division of No. 359, by a line running north and south, dividing it into two parts, the eastern, claimed by the defendants, containing 50 acres and 42 perches, and the western, 42 acres and 134 perches; and this sub-division, as appears by the draft, was made on the 7th of September 1860. The defendants also gave evidence tending to show that a line running from a white oak, at the south-west corner of Hanby’s land, being allotment No. 166, due north to the point which he claimed as the north-west corner of his tract, near a chestnut, would, if continued, run through the poplar, which they claimed as their line, and that the marks on the fitness trees, to the white oak, were of the same age with those on the poplar. To rebut this evidence, the plaintiffs showed by the testimony of three surveyors, that the only line marked on the ground was the line claimed by the plaintiffs; and that this line, if extended, would cross' Hanby’s east and west line at right angles, and strike the white oak at the south-west corner of his tract. They also showed, by the testimony of one or more-of the surveyors, that Hanby’s line was forty-one years old, and that the lower line of the tract conveyed to Snyder — allotment No. 359 — was twenty-three years old, corresponding in date with the disputed line claimed by the plaintiffs; that there were trees on the line claimed by the defendants, of sufficient age and size to have- been marked, if the line had been run on the ground, and that there was something like an old path by the poplar, and one of the blazed openings in the poplar indicated it. Snyder, under whom the defendants claimed title, testified that Chadwick showed him the line in 1860, and that he knew it five or six years before he bought, and that the [390]*390line- claimed by tbe plaintiffs was tbe line. But tbe defendants showed, by the testimony of two witnesses, if believed, that in 1861 or 1862, he pointed out the line by the poplar, and said that it was the line.
It is clear that, under the evidence, it was the province of the jury to determine which of the alleged lines was the division or boundary line between the plaintiffs’ and defendants’ land, and this question was left to their determination by the learned judge before whom the cause was tried. He instructed the jury, in substance, that if they should find, from the evidence, that there was only one line run and marked on the ground prior to the conveyance to Snyder, the question as to the line is settled. But if they should find that there are two lines on the ground, one run in 1835 or 1836, through the poplar, and another at a later date, well marked and defined, and about twenty-three years old, then they would have to determine which was the true line, and he submitted to the jury the question, whether the evidence satisfied them that there was such a line as the one claimed by the plaintiffs, and, if so, whether it was the line recognised by both Chadwick and Snyder at the time of the sale and conveyance to Snyder, and closed by saying: If you find there was a line through the poplar, as we have called to your attention, then the plaintiffs must satisfy you' that the later line is the one both parties intended. Evidence has been given on this point, and from it you find the fact. If the evidence is not sufficient to make it out, you will not presume it. Take all the evidence in relation thereto, and determine from that. The defendants below — the plaintiffs here — complain of these instructions, and of the refusal of the court to charge as requested in their 1st point, that the Chadwick draft, dated October 29th 1864, is evidence that the division between allotments 359 and 360 was established as early as 1835 or 1836, and there is no competent evidence in the case to show that it has been changed.
The first three assignments of error, it is admitted, raise but one question, and may, therefore, be considered together. The substance and burden of the complaint, which they are intended to embrace, is, that the charge, as a whole, was calculated to mislead the jury — that it was so expressed as to conceal from them the importance and legal effect of the fact that the division line was established in 1836, while it gave undue importance to the line run about the year 1843, and assumed throughout that it was proper for the jury to infer that this line must be eight years older than the marks upon it. In other words, the court permitted and encouraged the jury, as the plaintiffs in error allege, to presume that a line was run thirty-one years ago, because it is proved to have been marked twenty-three years ago. Is this objection to the charge well founded ? It assumes that the [391]*391division line between the tracts was actually run and marked on the ground in 1835 or 1836, of which there is not a particle of direct and positive evidence. If no such line was in point of fact run and marked on the ground, then this complaint of the charge is utterly groundless. The only evidence tending to show that such a line was run, is the memorandum on the draft furnished by Chadwick to Snyder, in 1864, which is in these words: “ Copied from my map of re-surveys, which I made for the Bingham estate, in 1835 and 1836,” and the marks upon the poplar tree of a corresponding date. This draft shows on its face the lines of the survey made on the 7th of September, 1860, when allotment No. 359 was sub-divided, and could not, therefore, have been an exact transcript from Chadwick’s map of re-surveys. But, admitting it to be a literal and exact copy, it does not follow that the line claimed by defendants below was actually run and marked on the ground when the re-surveys were made. There is nothing on the draft showing that the line was run and marked on the ground at the date of the re-surveys; and the marks on the poplar, though they are of a corresponding date, are but slight evidence of the running of such a line in the absence of any other marks or monuments, when, as the evidence shows, there were other trees standing on or near the alleged line of sufficient size to have been marked as line trees. If the line was run when the re-surveys were made, why was the poplar the only marked tree on the line, and why was there not some evidence, outside of the draft and the marks on the poplar, that it was actually run ? But the weight of the evidence was a matter exclusively for the jury, and the court submitted with great fairness to their determination the question as to the existence of the alleged line.
Referring to the draft and memorandum thereon, the court said to the jury, this is evidence tending to show that the division No. 859, which was conveyed to Snyder, was surveyed at that time, ■which is about thirty-one years ago. Along with this, there is evidence of the age of the marks on the white oak and poplar. Does the weight of the evidence satisfy you that there was a line run in 1835 orl836, and, if so, that the line from the white oak through the poplar is the one ? To answer this question, you must consider all the evidence in relation to it. As the court did nor express or intimate any opinion upon the weight of the evidence, the charge, in this respect, was as favorable as the plaintiffs in error had any right to ask or expect; for it left the jury to find, upon very slight evidence, whether the line claimed by them through the poplar had been actually run and marked on the ground. Even if it had been as well marked as the other, the court must have submitted to the jury, as it did, the question, which was the true line ? There is nothing on the face of the [392]*392deed, or draft, which would enable the court to determine, as matter of law, which was the line intended by the parties; and if both lines had been equally well marked, the court would not have been warranted in giving any instructions more favorable to the defendants below than it did, in saying'to the jury, that if they found there was a line through the poplar, then the plaintiffs must satisfy them that the later line was the one both parties intended at the time of the sale and conveyance by Chadwick to Snyder; and if the evidence was not sufficient to make it out, they would not presume it. Nor did the court fall into the error of assuming, as alleged, that it was proper for the jury to infer that the line claimed by the plaintiffs must be eight years older than the marks upon it, or of permitting and encouraging them to presume that a line was run thirty-one years ago, because it was proved to have been marked twenty-three years ago. There was no dispute or doubt as to the time when the line, claimed by the plaintiffs below, was run and marked on the ground. Its date was shown by the marks themselves, and the plaintiffs below did not allege that it was run in 1835 or 1836. On the contrary, they denied that any line between these tracts was run and marked on the ground when the re-surveys were made, and insisted that the line claimed by them, about twenty-three years old, was the only line which had been run and marked as the sub-division boundary between the two tracts or allotments. Whether the line claimed by the defendants, through the poplar, had been run and marked as the division line between the tracts, was, therefore, a material question for the determination of the jury, for if no such line was run, then the line claimed by the plaintiffs was the only line run and marked on the ground. But if both lines were run and marked, then it was for the jury to determine which was the true line, and, as we have seen, these questions were fairly submitted to their finding by the court.
The 4th assignment is founded on an entire misapprehension of the charge. The court did not leave to the jury the question whether there was a eonsentable line between the sub-divisions. But if the evidence satisfied the jury that there were two lines on the ground, and that they were run and marked prior to the conveyance to Snyder, then the court left to the jury to find which of the lines was the one intended and recognised by the parties at the time of the sale and conveyance by Chadwick to Snyder, with the instruction that the plaintiffs must satisfy them that the later line is the one both parties intended, and if the evidence was not sufficient to make it out, they would not presume it.
The refusal of the court to grant a new trial, being matter of discretion, is not the subject of review here, and cannot be assigned as error.
Judgment affirmed.