Marcy v. Brock

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE DEAN:
• Citation: Marcy v. Brock, 207 Pa. 95, 56 A. 335 (Pa. 1903)
• Decision Date: 12 October 1903
• Docket Number: 12
• Parties: Marcy v. Brock, Appellants

56 A. 335

207 Pa. 95

Marcy v. Brock, Appellants

No. 12

Supreme Court of Pennsylvania

October 12, 1903

Argued April 14, 1903

Appeal, No. 12, Jan. T., 1903, by defendants, from judgment of C.P. Luzerne Co., Jan. T., 1903, No. 12, on verdict for plaintiff in case of William H. Marcy et al. v. Frank Brock et al. Affirmed.

Ejectment for land in the borough of Warrior Run. Before WHEATON, J.

The opinion of the Supreme Court states the case.

Verdict and judgment for plaintiffs. Defendants appealed.

Error assigned among others were (1) in submitting the case to the jury; (13) that the verdict was against the evidence.

All the assignments of error are overruled and the judgment is affirmed.

A. H McClintock and H. W. Palmer, for appellants. -- Where the surveyor who lays out a warrant adopts former surveys as the boundaries of a tract, the commonwealth is bound by such lines, why therefore when a grantor adopts the line of his survey and patent for his description in his deed is he not bound by the lines on the ground, which have so often been held by this court to be the actual survey? Hines v Kingston Coal Co., 186 Pa. 43.

The courses and distances in a deed always give way to the boundaries found upon the ground or supplied by proof of their existence, when the marks or monuments are gone: Morse v. Rollins, 121 Pa. 537; Lodge v. Barnett, 46 Pa. 477; Rook v. Greenwalt, 17 Pa. C.C. Rep. 642; Watson v. Jones, 85 Pa. 117; Blasdell v. Bissell, 6 Pa. 258; Murphy v. Campbell, 4 Pa. 480; Smith v. Oliver, 11 S. & R. 257; Dawson v. Mills, 32 Pa. 302; Craft v. Yeaney, 66 Pa. 210; Thompson v. McFarland, 6 Pa. 478; Darrah v. Bryant, 56 Pa. 69.

D. L. Rhone, with him John T. Lenahan, for appellee, cited: Carroll v. Miner, 1 Pa. Superior Ct. 439; Green v. Schrack, 16 Pa.Super. 26; Hetherington v. Clark, 30 Pa. 393; Means v. Presbyterian Church, 3 W. & S. 303; Burkholder v. Markley, 98 Pa. 37; Hoffman v. Danner, 14 Pa. 25.

Before MITCHELL, DEAN, FELL, BROWN and MESTREZAT, JJ.

OPINION

MR. JUSTICE DEAN:

This was an action of ejectment in the court below, for twenty-three acres and forty-four perches of land in Hanover township, Luzerne county. It appeared from the evidence, that in 1802, Rufus Bennett, the elder, obtained from the commonwealth, by warrant, survey and patent a tract of land in Hanover township; the survey and patent name the quantity as 323 acres and allowance; the tract in the survey and patent is described as part of lots Nos. 11, 12 and 28 in the first division of said township. The survey, actually, was made on the ground and there is standing timber to this day through which the work of the surveyor of that early day can be easily traced. It is a long and in comparison with the number of acres, a very narrow strip of land, and there is no doubt from the evidence and the admissions of both parties, that by the descriptions in the patent it includes within its boundaries the twenty-three acres here in dispute. Rufus Bennett, the patentee, had a right to convey the whole or any part of this land to any one he saw fit; he had no right to convey the whole or any part twice; the defendants allege he did convey this twenty-three acres twice, first in August 5, 1826, to his son Rufus H. Bennett by deed duly executed and recorded same day, and second, about a year and a half afterwards, on January 1, 1828, by deed duly executed and recorded again conveyed part of the same land to Ira Marcy. Whatever title the son Rufus H. Bennett got is represented by defendants; whatever title Marcy got descended to these plaintiffs, his children and grandchildren. If the elder Bennett did not by his deed convey nor intend to convey the land in dispute to his son, the plaintiffs are entitled to recover. Was this piece claimed by Marcy embraced in the description of the land convey to the son? The first line in the patent, although a copy of the original survey is not before us, is about the same line as the deed and is as follows:

"Being parts of lots No. 28, 11 and 12 in the first division situate in Hanover, one of the seventeen townships in the county of Luzerne. Beginning at a corner, thence by part of lot No. 28 south 55 deg. west 23 2-10 perches to a corner; south 59 deg. west 18 7-10 perches to a corner; thence by part of lots Nos. 11 and 12 south 71 deg. west 54 perches to a corner; thence by part of No. 12 south 22 1-2 deg. east 314 perches to a corner; thence by parts of lots Nos. 12 and 11 north 67 1-2 deg. east 54 perches to a corner; thence by part of lot No. 11 south 22 1-2 deg. east 564 perches to a corner."

This last is the western short line of the tract and the northern long line. It will be noticed, that the distance of the first measurement of the long line is from the southwest corner of the tract 314 perches to a corner; at this distance there is no marked corner, nor is there any marked line from this corner by parts of lots Nos. 12 and 11 north sixty-seven and one half degree east fifty-four perches to a corner, although there is old original timber standing the length of the line; but if the line be extended the same course sixty-six and one half perches it reaches a well marked line, east fifty-four perches counting to the date of the original survey. Obviously, the surveyor either made a mistake in his measurement or in a computation of his acres within his lines; the commonwealth by its patent, granted by a line 314 perches long, the patentee got the land bounded by a marked line on the ground, the land within 380 1/2 perches. This mistake causes all the trouble in this issue. If Rufus Bennett in the deed of 1826 granted all the land granted to him by the commonwealth in 1802 by monuments made by the surveyor on the ground, this piece conveyed by him to Marcy in 1828 was no longer his to convey but belonged to his son and therefore to defendants.

On the other hand, if the description in the deed of Rufus Bennett to his son be exactly followed, that is if the 314 perch line be stopped at its exact distance, and the line sixty-seven and one half east fifty-four perches be run, that excludes from the son's deed the twenty-three acres claimed by plaintiffs. This long line, in the deed of the father to the son, if the same rule in locating the land...