Mineral R. & Min. Co. v. Auten

• Decision Date: 17 October 1898
• Docket Number: 553
• Citation: 188 Pa. 568,41 A. 327
• Parties: The Mineral Railroad and Mining Company, Appellant, v. Wesley Auten
• Court: Pennsylvania Supreme Court

41 A. 327

188 Pa. 568

The Mineral Railroad and Mining Company, Appellant, v. Wesley Auten

No. 553

Supreme Court of Pennsylvania

October 17, 1898

Argued May 23, 1898

Appeal, No. 553, Jan. T., 1896, by plaintiff, from judgment of C.P. Northumberland Co., May T., 1886, No. 161, on verdict for plaintiff. Affirmed.

Ejectment for a tract of land in Mt. Carmel township. Before MAYER P.J., of the 25th judicial district, specially presiding.

The land in dispute is indicated by the heavy lines in the following plan:

[SEE ILLUSTRATION IN ORIGINAL]

At the trial the court under objection and exception admitted in evidence the following plan: [1]

[SEE ILLUSTRATION IN ORIGINAL]

The court charged in part as follows: [Here is the William Lane running along this line until you come to this maple corner. At that point the Jesse Evans calls to run south ninety-seven rods, according to the official; it is called for as a post. There is no monument found on the ground corresponding with the official on the ground, but it calls for a post, and it is not supposed that a corner could be found there, and running from the Gilbert west. Then running south along this eastern line of the Jesse Evans, you come to the end of the official distance, eighty-six rods, and we instruct you that the proper way to locate the southern line of the Evans is to commence at this well-known corner of the William Lane, run this line according to its official distance until you come to the maple corner of the Jesse Evans, then south ninety-seven rods, and then commence at the William Gilbert pine and run west until you come to the northeast corner of the Evans, then south eighty-six rods, and a line running from ninety-seven rods to the eighty-six rods to the end of the southern line of the Jesse Evans.]

[All surveyors concur in testifying that this pine stump, as it is called, is a well-known corner of the Andrew Shuber, and the Andrew Shuber can and must be located from that pine corner as it is called for and was made by the surveyor who located that in 1784, and being a monument on the ground, well known and not disputed, the Andrew Shuber can and must be located from that corner; and running from the southern line of the Shuber north the official distance, it calls for a post 230 rods. In running the eastern line of the Shuber it calls for 300 rods as the eastern line of the Shuber, and we instruct you that the proper location of this northern line would be to run out this official distance from the pine stump 300 rods; that would give the northeast corner of the Shuber, and running the southern line from this stump would fix the northwest corner of the Shuber, and a line running at the end of 300 rods to intersect at the end of 230 rods would give the proper location of the northern line of the Shuber.]

Plaintiff's points and the answers thereto among others were as follows:

1. A deputy surveyor, after marking the lines of his survey upon the ground in execution of a warrant, cannot by a chamber line strike off a portion of the land embraced within the marked lines upon the ground without the consent of the owner of the warrant. Answer: Refused. [7]

2. A deputy surveyor cannot, after he has marked the lines upon the ground in making his survey under a warrant, alter any lines which he has already made on the ground so as to affect by diminishing the quantity already covered by the actual lines on the ground, unless he goes upon the ground and runs and marks the new excluding lines upon the ground before he returns the survey into the land office. Answer: Refused. [8]

3. Unless the deputy surveyor, when he wishes to exclude from the survey already run and marked by him on the ground a part of the land so included, goes upon the ground and runs and marks the new excluding lines so that the owner of the survey and warrant may be able to discover that the official survey to be returned will contain less land than the original survey so previously made, he cannot be affected by the return so made for less land, and the owner may hold to the lines originally marked upon the ground. Answer: Refused. [9]

4. If the jury find from the evidence that the lines found by the plaintiff's witnesses (surveyors) to have been made by the deputy surveyor, William Gray, in 1784, and that he ran no other line as the north line of the Andrew Shuber, then no subsequent purchaser of a warrant for the same land is an innocent purchaser, nor invested with such an intervening right as entitles him to hold the land, because the line so marked upon the land was notice to him that the Andrew Shuber ran as far north as made it include the land surveyed to Auten, the defendant, on his warrant and survey in 1885. Answer: Refused. [10]

5. If the jury believe that the north line of the Shuber, as claimed by the plaintiff's surveyors and marked on the ground, is in fact the second line run by William Gray, the deputy surveyor in 1784, after he had cut off a portion of the land embraced in the original or first survey, then the land covered by the said north line belongs to the plaintiffs, although the line has to be run 320 or 321 perches instead of 300 perches to reach said line; the distance over 300 perches to reach said line is not material, as the line must be extended until it reaches the gum witness. Answer: Refused. [11]

6. The paper purporting to come from the land office of Northumberland county, in which are lines corresponding in some particulars with the survey on the Andrew Shuber, cannot in any way control the monuments on the ground. If said paper was made by William Gray, deputy surveyor, it cannot in any manner affect the rights of the owners of the Andrew Shuber, it not being notice to any one, nor restrictive of the plaintiff's rights as owner of the Shuber tract. Answer: Refused. [12]

7. The old paper aforesaid could not after a lapse of 108 years be used to limit the marks found on the ground on the Shuber survey. Answer: Refused. [13]

8. It is in proof that there is frequently an excess in the lengths of the lines run 100 years ago, and such excess does not stand in the way of extending the east and west lines of the Shuber twenty perches beyond its calls. Answer: Refused. [14]

The court instructed the jury to find in favor of the plaintiff for that portion of the land embraced in the writ of ejectment, being part of the Wesley Auten survey, as per draft attached and made part of the record: No. 1. Beginning at a post 230 rods north of the southwest corner of the Andrew Shuber tract; thence north 76 degrees 43 minutes east 104.2 rods to a post; thence south 7 degrees 29 minutes east 8 rods to a post; thence south 76 degrees 27 minutes west 104.2 rods to post; thence north 8 degrees 22 minutes west 8 rods to a post, the place of beginning: containing 4 1/2 acres and allowance, more or less; No. 2. Beginning at a post at the intersection of the Jesse Evans south line and the northwest line of the Wesley Auten survey north 80 degrees 8 minutes east 115 rods to a post; thence north 7 degrees 29 minutes west 14.25 rods to post; thence south 83 degrees 15 minutes west 103.85 rods to a post; thence south 22 1/2 degrees west 24 rods to post, the place of beginning: containing 11 acres 37 perches and allowances, more or less; No. 3. Beginning at a post; thence north 69 degrees east 19 rods to a post; thence north 8 degrees 22 minutes west 5.1 rods to a post; thence south 68 degrees 15 minutes west 17 rods to a post; thence south 22 1/2 degrees west 6 rods to a post, the place of beginning: containing 85 perches and allowance, more or less; and No. 4. Beginning at at a post 230 rods north of the southwest corner of the Andrew Shuber tract north 76 degrees 43 minutes east 104.2 rods to a post; thence north 7 degrees 29 minutes west 13.5 rods to a post; thence south 80 degrees 8 minutes west 115 rods to a post; thence south 22 1/2 degrees west 7.75 rods to a post; thence north 68 degrees 15 minutes east 17 rods to a post; thence south 8 degrees 22 minutes east 16.8 rods to post, the place of beginning: containing 10 acres and 85 perches and allowance, more or less. [15]

The verdict was in accordance with the instructions of the court.

Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2, 3, 7-15) above instructions, quoting them.

Judgment affirmed.

Joseph C. Bucher and Wm. H. M. Oram, with them B. F. Junkin, for appellant. -- The draft made in 1784 should not have been admitted in evidence: Sweigart v. Richards, 8 Pa. 436; Farley v. Lenox, 8 S. & R. 396; Baker v. Haines, 6 Whart. 284; Depue v. Place, 7 Pa. 428; Travis v. Brown, 43 Pa. 9; Haycock v. Greup, 57 Pa. 438; Clayton v. Seibert, 3 Brewster, 176; Aumick v. Mitchell, 82 Pa. 211; Foster v. Collner, 107 Pa. 305.

The rule that the lines of a survey as returned into the land office must, after a lapse of twenty-one years, be considered as true lines and boundaries of the land, has no application where the lines are marked upon the ground: Bellas v. Cleaver, 40 Pa. 260; Malone v. Sallada, 48 Pa. 419; Watson v. Jones, 85 Pa. 117; Thompson v. McFarland, 6 Pa. 478; Blasdell v. Bissell, 6 Pa. 258; Hall v. Powel, 4 S. & R. 456; Quinn v. Heart, 43 Pa. 337.

There is abundance of authority to show that the deputy surveyor could not, after making the survey for Andrew Shuber, and marking the line on the ground, throw out any portion of the land included in the survey, without the consent of the warrantee, which cannot be presumed, even though his patent showed that the survey as returned differed from the survey run and marked upon the ground: Norris v. Hamilton, 7 Watts, 91; Merchant v. Millison, 3 Yeates, 73; Adams v. Jackson, 4 W. & S. 79; Caufman v. Pres Congregation of Cedar...