Clement v. Northumberland Coal Co.

Marks found upon an adjoining junior survey cannot control or enlarge the dimensions of an earlier survey, even though the junior survey adopts the lines of the older, but such marks may be submitted to the jury, as evidence tending to discover the actual location of the older survey.

Error to the Court of Common Pleas of Northumberland county: Of May Term 1877, No. 88. Ejectment by Ira T. Clement against the Northumberland Coal Company, to recover eighty-three acres of unseated land. The plaintiff claimed title to a tract of land in the name of Mary Myers, granted by-a warrant from the Commonwealth, on the 11th of June 1793, and surveyed on the 2d of October of that year. The title of the plaintiff to the land embraced in this warrant and survey was not disputed. This Mary Myers tract was one of a block of eleven tracts, surveyed at the same time, for the same person, on warrants all dated June 11th 1793. This block of surveys was known as the “Brush Yalley” block. The defendants claimed that the land in dispute was embraced within the lines of a tract of land surveyed October 22d 1794, on a warrant of November 26th 1793, to William Elliott. This William Elliott tract was one of a block of four surveys known as the “LaFavre” block, and adjoining the Brush Valley block on the south. The true line dividing these two blocks of surveys was the question in the case. It appeared that the northern line of the Brush Valley block and the southern line of the tracts forming the LaFavre block were both distinctly marked on the ground, but there was no evidence to show that the boundary line between these two tracts had ever been marked. The LaFavre block was the latest surveyed, and was described as bounded on the north by the Brash Valley block, but the eastern and western lines of the two blocks, as returned to the land office, were not of sufficient length to extend to a common boundary. The easternmost tract of the Brush Valley block was the Lobdell tract, and it also appeared that four months after the survey of the Brush Valley block a tract of land to the east of said block, and known as the Richard Martin tract, was surveyed and described as bounded on the west by said Lobdell tract and having its southwest corner identical with the southeast corner of said tract. It was shown also that the southern line of the Richard Martin tract was distinctly marked by a pitch pine and by a “ post by a pine” at its southeast corner. This return, it appeared, was returned to the land office three days before the earlier survey of the Brush Valley block. The plaintiff contended that the location of the southern line of the Richard Martin tract fixed the southern line of the Brush Valley Block, which included the plaintiff’s tract and he therefore, in his third point, asked the court to charge: “That in making a location, either of a single survey or of a block of surveys, the marks found upon the ground belonging to junior surveys, made about the same time by the same-surveyor, may be taken into consideration by the jury as evidence of the proper location of the elder surveys, if it appears that the surveyor in locating and marking the lines of the junior survey or surveys, adopted the lines of the older surveys which they adjoin, and returned those of the junior as identical with those of the older.” Which the court, Elwell, P. J., answered as follows : “ Marks found upon adjoining surveys, made about the time of the survey, are evidence upon the subject of location, but they cannot control or enlarge the dimensions of an earlier survey, even though they may adopt its lines. In the general charge the court also, inter alia, said : “ The material question in this case is, whether the southern boundary of the Mary Myers was fixed by that pitch pine on the line of the Martin, and by its southeast corner at a post by a pine. ' “ Upon that subject we have presented to us a number of points by the counsel, and their request to us to charge you, and I can as well give my views in reference to that subject by answering those points, as by any other method. Therefore I shall pursue that course, for the case, in my judgment, is narrowed down to the fact, as to whether the southern boundary of the Mary Myers was fixed by those marks or not. If it was, and if the marks made upon that Martin warrant were made at a later day that warrant could control the surveys upon the southern boundary of the Mary Myers. If there'was no line running south of the Mary Myers, nor of the body of surveys, then, unless this pitch pine controls the location of the course down to that, the plaintiff’s title does not extend further south than the length of the lines called for in the warrant, and if that is not the case, he could not recover the lands in question; on the contrary, if they do extend down beyond the original call — reach down far enough to make the line run from the pitch pine west, then, as I understand it, the Myers survey covers the land in question.” Verdict and judgment for defendants. Plaintiff then took this writ and assigned for error, inter alia, the answer to his third point.