Fisher v. Kaufman

• Decision Date: 07 October 1895
• Docket Number: 77
• Citation: 170 Pa. 444,33 A. 137
• Parties: Charles K. Fisher, Appellant, v. John M. Kaufman
• Court: Pennsylvania Supreme Court

33 A. 137

170 Pa. 444

Charles K. Fisher, Appellant, v. John M. Kaufman

No. 77

Supreme Court of Pennsylvania

October 7, 1895

Argued February 18, 1895

Appeal, No. 77, July T., 1894, by plaintiff, from judgment of C.P. Schuylkill Co., Nov. T., 1890, No. 227, on verdict for defendant. Affirmed.

Trespass for cutting timber. Before ALBRIGHT, P.J., specially presiding.

The facts appear by the opinion of the Supreme Court, and by the charge of the court below.

The diagram on page 447 shows the official survey upon which the patent to Charles K. Fisher, dated Feb. 21, 1890, was issued.

The diagram on page 449 shows the early Meyers and Thiel surveys and their adjoiners.

The diagram on page 448 shows the land in dispute with the Fisher survey superimposed upon the Meyers and Thiel tracts.

Defendant made the following offer:

Mr Kaercher: "I now offer in evidence certified copy of survey made 27th of February, 1837, to Abraham Bartolett of a tract in Manheim township, Schuylkill county, containing 146 acres, 50 perches and allowance; surveyed in pursuance of warrant dated 4th March, A.D., 1829, calling for Blue mountain surveys on the south, Abraham Bartolett on the west Abraham Bartolett on the northwest, late Jacob Hahn now William Philips on the north, Jacob Schwenk on the north late Henry Price now Jacob Schwenk on the east, Spanish oak for the southwest corner."

Mr. Schalck: "For what purpose?"

Mr. Kaercher. "To be followed by evidence of a patent to Abraham Bartolett, the warrantee, and to be further followed by a deed between the owners of the Thiel, Meyers and Harris surveys with the owners of the Bartolett, agreeing to a compromise or division line between their lands, and to rebut the evidence offered by the plaintiff that the line that Dreibelbis ran was an original line, the defendant claiming it was a compromise line. And for the further purpose of boundary."

Mr. Schalck: "Objected to because the A. Bartolett survey now offered, being a much later survey than the surveys in question, cannot be resorted to to locate the Thiel or the Meyers, or to fix the boundaries of those tracts; that the further evidence with which it is proposed to follow the offer now made will be objected to when offered and the reasons then assigned. That for the present the survey of the Abraham Bartolett is immaterial, irrelevant and incompetent."

The Court: "For explaining the line referred to in the offer this is evidence. Objection overruled. Plaintiff excepts. Bill sealed." [20]

[SEE ILLUSTRATION IN ORIGINAL]

"Defendant offered patent, commonwealth of Pennsylvania, to Abraham A. Bartolett, dated 23d of April, 1870, for a tract of land in Manheim township, Schuylkill county, beginning at a Spanish oak, thence by lands of Abraham Bartolett north 14 degrees west 74 1/2 perches to stone, north" --

Mr. Schalck: "For what purpose?"

Mr. Kaercher: "Under the same offer as I previously made."

Mr. Schalck: "Let us have an offer, because there is a special objection."

Mr. Kaercher: "Under the same offer as previously showing title out of the commonwealth to the lands conveyed by the deed between the owners of the Thiel and the Bartolett survey on the north."

Mr. Schalck: "Objected to because the land covered by the Bartolett survey and patent is not at all in controversy in this case. The Charles Fisher tract here claimed does not interfere with the Bartolett survey, and there is no conflict between these two surveys and the title of Bartolett and Fisher; that it relates to lands which are not involved in this controversy, and it can throw no light upon the controversy in this case; that the whole of the proposed evidence is immaterial and irrelevant; and the evidence now proposed cannot form any foundation for the evidence proposed to be offered hereafter as stated in the gentleman's offer."

"It is further objected to that there is nothing contained in the proceedings concerning the warrant, survey or patent to Abraham Bartolett for the land covered by these proceedings, or the call of the Bartolett for Blue mountain land below it which would in any wise estop or tend to estop the commonwealth from subsequently declaring the land in question vacant, and granting a warrant and survey and patent thereon; that the commonwealth, nor her grantee Charles Fisher, in these proceedings, is in no wise estopped by the proceedings now proposed to be given in evidence."

The Court: "This is a matter connecting itself with the alleged north line of the Thiel tract in such a way that I do not think it can be excluded. Objection overruled. Plaintiff excepts. Bill sealed."

Mr. Kaercher: "Patent dated 23d April, 1870; commonwealth of Pennsylvania to Abraham A. Bartolett, reciting in consideration of money paid by Abraham Bartolett at the granting of the warrant and of the $15.55 arrearages paid by Abraham A. Bartolett, there is granted a certain tract of land situate in Manheim township, Schuylkill county, Pennsylvania, beginning at a Spanish oak thence by lands of Abraham Bartolett north 14 degrees west 74 1/2 perches to stones, north 62 degrees east 48 perches to a corner; thence by William Philips formerly Jacob Hahn south 14 degrees, east 61 1/2 perches to chestnut; thence north 76 degrees east 77 4/10 perches to a stone; thence north 14 degrees west 80 perches to black oak; thence north 76 degrees east 125 1/2 perches to a chestnut oak; thence north 25 degrees east 22 perches to a hickory; thence north 59 degrees east 30 perches to a chestnut oak; thence by Jacob Schwenk south 29 degrees east 46 perches to stone; thence south 21 degrees east 38 perches to stone; thence south 61 degrees east 32 perches to stone; thence north 57 degrees east 69 perches to a stone; thence by Jacob Schwenk formerly Henry Price south 11 degrees east 42 perches to a stone, and thence by other lands south 75 degrees west 395 perches to the place of beginning, containing 146 acres, 50 perches; which tract was surveyed in pursuance of warrant dated 4th March, 1829, granted to the said Abraham Bartolett."

"I now offer deed between George DeB. Keim, Benneville Keim, Jacob Huntzinger, Jr., and Abraham Bartolett, dated 26th day of December, 1844, recorded January 2, 1845, in deed book No. 23, p. 323; for the purpose of showing there was a compromise line run upon the ground, and deeds exchanged in pursuance of that between the owners of the Casper Thiel warrant and survey and the owners of the Abraham Bartolett warrant and survey, just offered; and for the purpose of contradicting the evidence offered by the plaintiff that the line run by Dreibelbis is the original north line of the Casper Thiel tract, the defendants claiming that the line run by him is the compromise line of 1845."

The Court: "Do you allege that the Bartolett survey interfered with the Thiel survey?"

Mr. Kaercher: "Yes, sir; it is so recited in this deed."

Mr. Schalck: "This is objected to because it was not in the power of the owners of the Meyers and Thiel tracts nor the Abraham Bartolett, nor by any compromise or private arrangement or settlement between themselves to prejudice the interests of the commonwealth; that the question in this case is the question of location and extent of the principal surveys under consideration, the Thiel and Meyers, and that there is nothing in the proposed deed of compromise that shows or tends to show the extent of those surveys, nor whether the land now in controversy is included in them or not; that it is not in the power of private landowners by arrangement of this kind to deprive the commonwealth of her land; and there is nothing in this testimony now proposed that shows or tends to show whether or not the land in question was vacant as alleged by the plaintiff; and there is also nothing in this testimony that will throw any light or establish anything in evidence as to the red painted or compromise line which has been referred to. If there was such a line run upon the ground the proper way to show that is by proving its actual existence and location upon the ground by competent evidence; that the whole of the proposed evidence is misleading, incompetent and irrelevant, and fails to show anything before the court and jury."

Mr. Kaercher: "Defendant purposes following this up with evidence of the marking of a line upon the ground prior to the execution of this deed, and also to follow it with the map of the surveyor who ran the lines showing its location."

The Court: "It is undoubtedly true, as claimed by plaintiff's counsel, that the action of the parties to the deed offered could not affect the commonwealth. They could not by compromise, or in anyway, appropriate to themselves land which was vacant. If there was any vacant land between the Thiel and Bartolett surveys it remained vacant at the time the patent was granted Fisher notwithstanding this compromise arrangement, and so the court will rule throughout. But the court understand this deed is offered for the purpose of explaining that line made upon the ground in 1840 some; that trees were marked. The deed is to furnish the foundation for evidence of that running of the line, and evidence of the existence of a line is sought to be offered by the defendant to explain the testimony of Dreibelbis, who testified to that line which was marked in 1840 odd. The court further understand that the allegation of the defendant is that the Thiel survey ran up further than the south line of the Bartolett; that the Bartolett interfered with the Thiel, and that the commonwealth had been twice paid for certain portions of land belonging to the interference; that there was no vacancy and in short, to explain the line testified to by Dreibelbis this evidence is offered, and the court deems that...