Fritz v. Brandon

Chief Justice Agnew

delivered the opinion of the court, October 12th 1875.

There are two principal questions in this case which must determine it. The first is upon the effect of the resurvey by William Gray, deputy surveyor of Northumbei’land county, of fourteen of the wan-ants owned by James Silliman ; the second upon the effect of the sales of the commissioners of Schuylkill county for taxes in 1849. The facts relating to the first question are these: On the first day of July 1793 James Silliman applied to the Land Office for eighteen tracts of land “supposed to be in Berks county,” and paid the purchase-money. Warrants were signed and were placed in the hands of Henry Yanderslice, deputy surveyor for Berks county, who surveyed them in a single block in the Catawissa valley, in July 1793, and returned the surveys to the Land Office on the 16th of July 1793, as made in Berks county. The evidence discloses no acceptance of these returns, and it is not probable they were accepted, as a caveat against all was filed on the 18th of July, two days after the return. This caveat sets forth the surveys as made in Northumberland county or Berks, and was filed by persons claiming prior surveys, alleged to be interfered with. These were grounds at once to prevent acceptance. The caveat was never acted upon, and no citation issued. The boundary line between Berks and Northumberland county was then in doubt, and two years later an Act of Assembly was passed creating a commission to ascertain it. When defined the Yanderslice surveys were clearly shown to be in Northumberland county. In the autumn of 1793, these warrants are found in the hands of William Gray, deputy surveyor of Northumberland, who in the month of October, located fourteen of them in a single block, partly upon the same ground surveyed by Yanderslice, but avoiding the interferences complained of. Every fair presumption is that Silliman abandoned the Yanderslice surveys, on the ground that they were probably not in his proper county, and because they interfered with older rights, and that the returns of Yanderslice were not accepted, but that the surveyor general 'either endorsed a new direction on the copies of the warrants to Gray, the deputy surveyor of Northumberland county, or issued new copies, a pre *351 sumption which both the facts and the authority of Stephens v. Cowan, 6 Watts 515 , justify us in drawing.

In estimating the effect of these facts on the question of title two other facts connect themselves directly with the case, to wit: that James' Silliman and others have never since recognised the Vanderslice surveys, but that both he and the Commonwealth have recognised the Gray surveys as the only foundation of title, and that the fourteen surveys were located in a single block adjoining and bounded by older surveys constituting outside boundaries clearly defined, leaving no doubt of their identity as a block survey for a single ownership.

Before noticing the principal question, it is proper here to correct an error of the court below bearing directly on the main question. The defendants offered a patent to John Myer for the James Silliman tract, dated in 1806, to be followed by the patents for ten others in this block. The court excluded all except the patents for the tracts interfering with the John Bitler survey under which the plaintiffs claimed. The effect of this rejection was to keep out of the case all these evidences of the confirmation by the Commonwealth of the block survey by William Gray. This seriously affected the defendants, for the doctrine of block survey as bearing on the title of the owner of the block is well settled. When one person is owner of all the warrants, they maybe surveyed together ih a single block by exterior lines, leaving the interior lines to be settled by the owner himself: Mock v. Astley, 13 S. & R. 382; Stevens v. Hughes, 3 W. & S. 465 ; Collins v. Barclay, 7 Barr 73; Hagerty v. Mathers, 7 Casey 348. The legal effect is that the entire block is viewed as one tract. Hence, 0. J. Lewis said, in Hole v. Rittenhouse, 1 Casey 491: “ Under these circumstances it is evident that the whole fifteen surveys adjoining each other in a single block, without interior lines, all made at one time and owned by the same party, were essentially but one tract, which the owner might occupy or subdivide at his pleasure.” This principle was in the mind of C. J. Woodward, when he said, in Malone v. Sallada, 12 Wright 425 : “ And when we are dealing with blocks of surveys we must remember that the marks on any part of the block belongs to each tract in the block.” So Judge Strong said, in Darrah v. Bryant, 6 P. F. Smith 75 : “ And if they were surveyed as a block, they must be located as a block.” The block being thus regarded as one tract and a single ownership, and the Gray surveys being all so located, returned and accepted together, it is evident that the effect of the confirmatory acts of the Commonwealth in granting patents for eleven out of the fourteen surveys extends to the whole block, and is not confined to those only for which the patents were issued. If any of the Gray surveys are to be treated as made without authority, all must be so regarded. All stood on the same footing and were made and returned at the. *352 same time, and if some were recognised as having been authorized it affords strong evidence all were authorized. All the patents relating to this same block should have been received.

This brings us to the main question, as to the validity of Gray’s surveys. The conclusion of the learned judge below, stated in his own language, was, “ that the surveys made by Gray were upon exhausted warrants — that his attempt to locate them a second time was an unofficial act and void — and that the lands included in his surveys, riot previously appropriated, belonged to the Commonwealth, and were left open for future appropriation.” This language is general, covering even those surveys upon which patents were granted, contrary to a number of cases deciding that a patent cures irregularities in the survey. This may not have been intended, but narrowing the learned judge’s language to apply to the cases where patents had not been issued, his conclusion was an erroneous application of a correct principle to the facts of this case. That a deputy surveyor who has made a return of his survey to the surveyor general, cannot make a new survey, or alter the lines of the survey as returned without a new authority is well settled. His authority is exhausted by the return, and he is functus officio. The authorities are numerous: Drinker v. Holliday, 2 Yeates 87 ; Porter v. Ferguson, 3 Id. 60; Deal v. McCormick, 3 S. & R. 343 ; Oyster v. Bellas, 2 Watts 397 ; Bellas v. Cleaver, 6 Wright 260 ; Hughes v. Stevens, 7 Id. 197. In all of these cases, however, the important exception is stated, viz.: unless there be “ new directions” — “new authority” — “an order” — “new authority from the surveyor general or the board of property,” and the reason given is that the deputy has exhausted his authority. But the authority of the surveyor general is not exhausted by the mere return of his deputy. Until he accepts the survey it is not consummated. If upon the return of a survey into his office he discovers a reason why the survey should not be ratified or consummated, what is there to prevent him from directing a new survey ? This is the very doctrine held in Stephens v. Cowan, 6 Watts 511 . There a warrant for land in Northumberland or Huntingdon county was executed in Westmoreland county. Justice Kennedy, a most excellent land lawyer, said, “ It was certainty competent for the surveyor general, upon being informed by the holder of the warrant here, that the land lay in Westmoreland county, to have directed it to his deputy in that county, and if a survey had been made accordingly by such deputy, it can scarcely be doubted, but it would have been good. Now, for aught that appears to the contrary, the survey here may have been made by the deputy surveyor of Westmoreland county under such an authority, written upon the copy of the warrant put into his hands, which has not been produced, and after an acquiescence for upwards of thirty years on part of everybody in the surveys as made and returned here, it *353 ought to be presumed, on account of the public peace and security of titles to real estate, that it was rightly made.” This language is very applicable to the case before us. The Silliman batch of warrants were issued for land supposed to be in Berks county, they were surveyed in fact in Northumberland county by the deputy surveyor of Berks, and interfered with other surveys ; this was in July. In October we find them in the hands of Gray, the deputy for Northumberland. His returns are accepted and patents issued on many of them, and they were acquiesced in by everybody for over thirty years, while the Vanderslice surveys were never recognised after their return. The trial took place more than eighty years after the return of Gray’s surveys. After such a lapse of time and under these circumstances, the presumption is violent that the Vanderslice surveys were abandoned, and a new direction given by the surveyor general to Gray. It is very clear that in 1806, when five of the patents were issued, in 1808 when two more were issued, and in 1813, when another was granted, there must have been evidence before the officers of the Land Office, of the regularity of the Gray surveys. The authorities on this point as to the presumption are clear and to the point.

But in the first place let us notice the powers of the surveyor general. Before the Revolution the officers of the Land Office were the agents of the proprietaries, and therefore looked upon as clothed with large powers. The Act of 9th April 1781, 1 Sm. Laws 530, which first opened the Land Office under the Commonwealth, simply provided that the secretary of the Land Office, receiver general and surveyor general, might appoint deputies and clerks to assist in executing the business of their offices, and the surveyor general should appoint deputies to make surveys in their proper counties only. No other general powers were conferred, the legislature seeming to suppose these officers acted under known customary powers. But by the second section of the Act of 1st April 1784, 2 Sm. Laws 102, “ the several officers of the Land Office are hereby fully empowered and directed to do and perform every act and thing incident or in anywise appertaining to their said offices with respect to receiving, filing and entertaining locations, granting warrants on the same, receiving the consideration, directing copies of warrants, or other rights, receiving returns, and issuing patents of confirmation, as heretofore, agreeably to the former customs and usages of the said offices.” These powers it will be seen concern the very matter in hand. Speaking of the surveyor general, Justice Yeates said, in Harris v. Monks, 2 S. & R. 559: “ But what law or usage forbids the surveyor general himself to execute a warrant, if his superior duties allow him leisure for that purpose ? If he may do it personally why may he not appoint a special agent to perform the service ? Such agent would be a *354 deputy pro hae vice.” And in Brien v. Elliott, 2 Penna. R. 59, Chief Justice Gibson said: “ Why might not these surveys have been executed by the surveyor general in person? Even under tl^e Commonwealth, when the latitude of discretion allowed by the proprietaries, who had absolute power over the subject, has been greatly abridged by positive law, if not entirely taken away, his act of adoption has been held to ratify a survey by one who was not the proper officer, and who consequently had acted without authority.” It is clear that in the case before us the Gray surveys were accepted and adopted by the surveyor general and confirmed by numerous patents. In regard to this power to ratify or adopt, the Chief Justice spoke with authority. See Harris v. Monks, supra; Creek v. Moon, 7 S. & R. 330. In the last ease the survey was made by one not appearing to be a deputy, and Tilghman, 0. J., said, “ Under the proprietary government the surveyor general exercised the power of making special deputations, and I do not think he was deprived of that power by the Act of 1781.” He refers also to the case of Wright v. Wells, 1 Yeates 286 , where a survey was made in 1786 by John Hage, deputy surveyor, of land outside of his district. The principle of adoption is the ground of decision in Shields v. Buchannan, 2 Yeates 219 , and Funston v. McMahon, 2 Yeates 245 . Light v. Woodside, 10 S. & R. 23, is a ease strongly bearing on this. There the surveyor general rejected the survey, and another had been made without a new authority, yet it was held after confirmation by patent that the irregularity did not invalidate the title. So in Goddard v. Gloninger, 5 Watts 209 , it was said that though ratification contrary to a positive statute would not be permitted, yet even there lapse of time would make the title valid. Balliott v. Bauman, 5 W. & S. 150 , is a still stronger case. There the application of Rhodes was actually located on other lands which were still held at the time of the trial under that application, by vendees of Rhoads. Many years afterward Rhodes had another survey made on his application, which was returned and accepted and patent granted upon it. It was held, the land taken by the second survey being vacant, and no intervening right acquired, the patent conferred a good title. In the present case the land first surveyed was abandoned and left open to appropriation by others. This principle of adoption governed in Stephens v. Cowan, already referred to. Another illustration of it is found in a class of cases represented by Layton v. Paull, 5 Watts 465 . There, notwithstanding the proprietary regulation of 1767, forbidding deputies to include more than ten per centum in the survey, and the Act of 8th April 1785, allowing an excess not exceeding ten per centum, an acceptance by the surveyor general of a survey containing more than ten per cent, was held to be valid. The distinction is apparent, the prohibition operated on the deputy, but not on the surveyor general *355 himself. Bearing on the same principle are the eases of Coxe v. Woolbach, 2 Casey 122, and Sabins v. McGhee, 12 Id. 453, holding that after acceptance of an irregular survey and confirmation by patent the land first surveyed is open to appropriation by others; and also Chew v. Morton, 10 Watts 321 , that after the issuing of a patent the officers of the Land Office have no power to set it aside. Now in the case before us the acceptance of the block survey by Gray, and granting of patents on some of the surveys to Silliman and his assigns, left the Yanderslice surveys open to appropriation. The state having received the purchase-money from Silliman, accepted the Gray surveys and confirmed part of the block by patents, cannot assert that no title passed under these surveys, while Bifcler had no intervening right to be protected.

Now when we add to these considerations and precedents the weight always attached to the lapse of time in raising presumptions and quieting titles as the means of maintaining peace, order and harmony in the relations of civil society, there can be but one right conclusion in this case. The importance of such presumptions is stated with great emphasis and fulness of reference to authorities by Justice Kennedy in Bellas v. Levan, 4 Watts 294 , where he sums up in this conclusion : “ It is too obvious not to be seen and felt by every one how very important it is to the best interests of the state that titles to lands, instead of being weakened and impaired by lapse of time, should be strengthened until they shall become incontrovertibly confirmed by.it.” The application of this doctrine to chamber surveys is a striking example: Caul v. Spring, 2 Watts 390 ; Oyster v. Bellas, Id. 397 ; Nieman v. Ward, 1 W. & S. 68 . Justice Kennedy, in Bellas v. Levan, supra, says, “ Twenty years (now twenty-one) from the return of survey by the deputy into the surveyor general’s office were held (referring to Caul v. Spring), to be sufficient to raise an absolute and conclusive presumption that'the survey was rightly made.” “ And that,” said C. J. Black, “ even where there was an unexecuted order of resurvey by the board of propertyreferring to Collins v. Barclay, 7 Barr 67. “In short,” continued Judge Black, “ the courts of this state seem uniformly and especially of late to have refused to go back more than twenty-one years to settle any difficulty about the issuing of warrants and patents, or the making or returning of surveys, or the payment of purchase-money to the Commonwealth Strimpfler v. Roberts, 6 Harris 299. On the subject of presumptions from lapse of time; see also Mock v. Astley, 13 S. & R. 382; Goddard v. Gloninger, 5 Watts 209 ; Nieman v. Ward, 1 W. & S. 68 ; Ormsby v. Ihmsen, 10 Casey 462; McBarron v. Gilbert, 6 Wright 279 . In the case before us the surveys of Gray were made and accepted thirty-three years before the issuing of *356 John Bitler’s warrant, and thirty-five years before the survey made upon it.

The case of the Improvement Company v. Numson, 14 Wall. 442 , does not touch the question before us. The error assigned was : “ That the court erred in charging the jury that no subsequent official survey of the land under those warrants, without a warrant of survey or order of the board of property, was authorized.” In refusing to reverse, the Supreme Court of the United States simply affirmed a general principle which we all recognise. The Jacob Yeager survey, then in question, was not one of the block of fourteen surveys by Gray, but was laid by the deputy surveyor of Berks county twenty-two miles away. No evidence was given of the acts of confirmation of the surveys in the same block, the Yeager survey being entirely isolated. The fact, too, was assumed that the Yanderslice survey on the Yeager warrant was accepted on the 16th of July 1793, the day of the return, a fact not proved and not probably true. On the question of presumption the court in that case were without facts to raise it, and relied on the case of Wilson v. Stoner, 9 S. & R. 39, a case without a single feature like the present. There was no evidence that a warrant had ever issued out of the Land Office, and the only question was whether the fact could be inferred from the finding of a survey in the deputy surveyor’s office, with the endorsement, “ copied for return.” Of course, without some evidence of payment of purchase-money, or some entry in the Land Office, the existence of a warrant could, not be inferred from this outside statement of a deputy in the country.

The next important question arises upon the tax sales to the commissioners in 1844, and their sales in 1849. On the 10th of June 1844, the Troxel, Immel and Klinger tracts were sold to the commissioners for unpaid taxes, and they sold the same on the 16th July 1849, to J. W. Roseberry and others, and delivered deeds therefor, September 1st 1849. On the 10th of June 1844, the John Bitler tract assessed as three hundred acres in the names of Elizabeth and Hannah Bitler, was sold to the commissioners for unpaid taxes, and they on the 16th July 1849, sold the same to 0. M. Straub, who refused to pay the purchase-money, except as a set-off of his account as sheriff, for boarding prisoners. The commissioners declined to admit the set-off, and after several years had elapsed, placed the matter in the hands of an attorney to collect the bid. The commissioners and Straub finally settled in 1854, and they then delivered the deed to Straub, upon the sale of 1849. The John Bitler survey was laid chiefly on the Christian Troxel survey, with a small part over on the Christian Immel survey, and possibly a small part on the Casper Thiel tract. The court below having decided that the surveys on the warrants by .Gray were void, on the ground of Hunter v. Albright, 5 W. & S. *357 423 , held, that the sale of the three hundred acres assessed to Elizabeth and Hannah Bitler was the only valid tax sale, and that this was vested by the commissioners’ sale in C. M. Straub. But the court having erred in holding the Gray surveys to be void, and they being the older and better, the principle of Hunter v. Albright, turns to the opposite side, and the sale of the Troxel and Immel tracts for taxes confers the better title, which by the commissioners’ deed of sale of 1849 became vested in Roseberry and others. Hunter v. Albright was afterwards recognised in Diamond Coal Co. v. Fisher, 7 Harris 267. And irrespective of the doctrine of these cases, if the tax sale in either name be sufficient to convey title to the actual locus in quo, the title of Roseberry would prevail, for he was the first to pay the purchase-money to the commissioners, and obtain his deed. Prior in tempore potior est in jure. But it is sufficient, that the title under the Gray surveys being good, the tax sales of Troxel and Immel were good.

These are the only errors to be noticed, as the others rest on these as the fundamental questions in the case.

Judgment reversed, and a venire facias de novo awarded.