Keller v. Over

• Decision Date: 04 June 1890
• Docket Number: 399
• Citation: 136 Pa. 1,20 A. 25
• Parties: PHILIP KELLER v. MARY P. OVER ET AL
• Court: Pennsylvania Supreme Court

20 A. 25

136 Pa. 1

PHILIP KELLER v. MARY P. OVER ET AL

No. 399

Supreme Court of Pennsylvania

June 4, 1890

Argued April 25, 1889

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF CENTRE COUNTY.

No. 399 January Term 1889, Sup. Ct.; court below, No. 121 November Term 1883, C.P.

On October 18, 1883, Philip Keller brought ejectment against George W. Ford and James A. Beaver for a tract of land containing 300 acres and six per cent allowance, etc. The defendant's plea was not guilty. On February 1, 1886, the death of George W. Ford being suggested, Mary P. Over and others, his heirs at law, were substituted as defendants.

At the trial on December 7, 1887, the following facts were shown:

The land claimed by the plaintiff was embraced in an official survey, made August 5, 1874, in pursuance of a warrant dated June 3, 1869, granted to Joseph Devling. By a regular chain of title the claim of Joseph Devling, under said warrant and survey, was vested in the plaintiff. The heirs of George W Ford showed title in themselves to a tract originally surveyed under a warrant dated April 29, 1793, in the name of Thomas Greeves; and James A. Beaver showed title to a tract surveyed under a warrant of the same date, in the name of Samuel M. Fox. Ford's heirs were in possession of a part of the land sued for in this action, claiming that the same was embraced within the Greeves survey, and Beaver was in possession of the remainder of it, and claimed the same as a part of the Fox survey. The only controversy in the case was over the proper location of the Greeves and Fox surveys. If that location was as the plaintiff claimed it to be, his title was good; but if the proper location was as claimed by the defendants, they had the older and superior title to the land in dispute.

The Greeves and Fox surveys were part of a block of surveys known as the Moore Wharton block. That block was located and surveyed, under the warrants which covered it, in August 1794. The testimony for the defendants tended to show that the western boundary line of the Moore Wharton block, as run and marked upon the ground by the official surveyor coincided with the eastern line of another block, known as the Slaymaker block; while the testimony for the plaintiff tended to show that the western boundary of the Moore Wharton block was located and marked upon the ground by the surveyor some distance to the east of the Slaymaker block, leaving between the two, the strip of land afterwards covered by the Devling survey.

At the close of the testimony the court, SIMONTON, P.J., 12th district, specially presiding, charged the jury in part as follows:

The matter in controversy is whether the land surveyed on the Joseph Devling warrant is the same land which was covered by the Thomas Greeves and Samuel M. Fox surveys.

The title held by the defendants is the older title; therefore, if the land claimed by the plaintiff was covered by surveys and patents issued at an earlier date, which the defendants now own, then your verdict would have to be for the defendants; whereas, if the surveys made upon defendants' warrants do not cover the land where the plaintiff's survey was located, then your verdict would be for the plaintiff.

You understand then, gentlemen of the jury, it is a question of location and not a question of paper title; a question of location; and that question you have to determine. It is a question of fact for the jury; it is your duty, therefore, to determine it, not the duty of the court. Our duty is to instruct you on the principles of the law which must guide you in determining that question. . . .

In 1794, at the time the warrants were granted under which the defendants in this case claim, the law was that no person should take a warrant for more than 400 acres, on which, however, they were allowed to have surveyed and returned a small amount in excess over that number of acres. But it became a settled practice for persons wishing to appropriate more land than that, to make a number of applications at the same time for warrants in the names of different persons, either actual persons, who allowed their names to be used for the purpose, or fictitious persons; and this practice was winked at by the land authorities, who knew the fact that the warrants were really taken in the various names by a single person or company of persons, whose title was fixed by accepting payments of the purchase money from them. When a number of warrants were thus taken out, and surveys were made upon them, they were considered, in fact and reality, as a single survey, and they have been called ever since a block or batch of surveys; and the rule was adopted and settled that they should be surveyed as a single tract. It was equivalent, in fact, to a person taking out a warrant and having a survey made for a large tract containing the number of acres which all the surveys amounted to when added together.

Counsel have asked us to give you certain instructions as to the rules and principles according to which batches or blocks of warrants were to be surveyed, and according to which the location is to be located and determined. We will give you these instructions at this point.

The plaintiff has asked us to say to you:

1. That the lines run and marked upon the ground by the deputy surveyor and returned by him, constitute the actual survey; and, when they can be found and identified, they are the highest and best evidence of where the survey is located."

Answer: This is affirmed.

2. The calls for natural and visible monuments, such as streams, waters, etc., are the next best evidence of the location of a tract or block of surveys, when its own lines cannot be found.

Answer: This point is affirmed with this one qualification, that this is so where the jury find that the streams, waters, etc., are laid down from actual survey and actual observation of the surveyor. We insert this qualification, in answering the above point, because of a fact well known, a fact referred to here by counsel on both sides, that surveyors did not run all the lines of their surveys. It is well known that they frequently marked waters upon surveys, when they had not actually run the lines; and of course where they did that, not as much confidence would be put in the accuracy of their marking of the waters; and where it appears to the jury, in any given case, that the waters were marked without an actual survey having been made, of course it would have very little weight, but the situation of the waters, when they were laid down by the surveyor, having been actually upon the ground, is of weight as stated in this point.

4. That in the absence of lines run and marked, or adopted, for the tract or block, and in the absence of natural visible monuments called for, calls for adjoining surveys are the next best evidence of the location of the tract.

Answer: This is affirmed.

5. Courses and distances are the weakest evidence of the location of a tract or block of surveys, and can only be resorted to when all superior evidence fails.

Answer: This is also affirmed.

6. When lands are surveyed and returned into the land office in blocks, they are to be located in blocks.

Answer: This is affirmed.

7. The location of one or two particular tracts of a block cannot be arbitrarily determined, but it is to be got at by first locating the block of which they are parts.

Answer: This is also affirmed.

8. The lines and corners of each tract of a block of surveys belong to every other tract of the block, and assist in locating every tract.

Answer: Affirmed.

The defendants have asked us to say virtually the same:

1. That in locating a block of surveys, all the lines and corners marked upon the ground must be taken into account; those found upon any part of the block belong to each and every tract of which it is composed, and if sufficient, determine the location of the entire block.

Answer: This is affirmed.

2. A block of surveys must be so located as to preserve as far as possible the entire conformation of the block as officially returned.

Answer: This is affirmed. It is a matter to be looked to; it does not control absolutely, but where they can be so located, and between such a location and another that would distort the general conformation of the block, the location that would preserve its contour would have the preference.

[There are two other rules with respect to which instructions have not been asked for by either side, but they are rules to be observed by the jury in considering the question of location and these are: That where surveys have been made and returned into the land office for a period greater than twenty-one years, without having ever been questioned or controverted, the presumption is conclusive that the surveyor actually made the survey upon the ground. It is also a rule that where surveys have been made and returned for over twenty-one years, without dispute, the presumption is that they were actually made as they were returned, or located; where they are returned as having been located; and, after the lapse of so long a period, as in this case, if you find that these surveys returned in 1794 were not questioned until 1869, after the lapse of so long a period as that the presumption would be very strong that originally the surveys were made as they were returned as having been made and located. The reason of this is, that after so long a period of time the marks made by the surveyor disappear, the witnesses die, trees die, are burned or cut down, and posts decay. The greater the lapse of time, the more difficult it is to follow the work of the surveyor on the ground; and hence it is necessary to pay great regard to the report the surveyor made of his...