Ormsby et al. v. Ihmsen

• Decision Date: 01 January 1859
• Citation: 34 Pa. 462
• Parties: Ormsby et al. versus Ihmsen.
• Court: Pennsylvania Supreme Court

34 Pa. 462

Ormsby et al. versus Ihmsen.

Supreme Court of Pennsylvania.

ERROR to the District Court of Allegheny county.

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Burgwin, for the plaintiffs in error, cited Dezell v. Odell, 3 Hill 219; Eldred v. Hazlett's Administrator, 9 Casey 307; Sergeant v. Ewing, 6 Id. 81; Beaupland v. McKeen, 4 Id. 131; Henry v. Henry, 5 Barr 247-9; Nieman v. Ward, 1 W. & S. 68; Lambourn v. Hartswich, 13 S. & R. 113-21.

Williams & Sproul, for the defendant in error, cited Schnable v. Doughty, 3 Barr 399; Covert v. Irwin, 3 S. & R. 283; Cox v. Crouch, 8 Barr 147; Hall v. Powel, 4 S. & R. 456; Mahon v. Duncan, 1 Harris 459; Martz v. Hartley, 4 Watts 261; Walker v. Smith, 2 Barr 43; Hall v. Tanner, 4 Id. 247; Mills v. Buchanan, 2 Harris 59; Gratz v. Hoover, 4 Id. 238; Hagerty v. Matthers, 7 Casey 348; Lorain v. Hall, 9 Id. 270.

The opinion of the court was delivered by SRRONG, J.

This case was before us last year, upon a writ of error brought by the plaintiff below, to the judgment of the District Court upon a reserved point. We then reversed that judgment, and as there was nothing upon the part of the record submitted to us, to indicate that the plaintiff was not entitled to the benefit of the verdict which he had obtained, we directed judgment to be entered upon it in his favour. The defendants below now bring this writ, and allege that errors were committed against them, apparent in that part of the record, not last year before us. This they have a right to do, for every writ of error is an action, though founded upon another legal proceeding. The judgment upon such a writ, if successful, is, regularly, that the errors assigned have been sustained, and it is only as its consequence, that the judgment of the inferior court is reversed. Of course, it is no bar to a writ sued out by the unsuccessful party assigning different errors. If, however, the whole record of the court below had been brought here by the former writ, we should then have ordered a venire de novo, instead of directing judgment to be entered upon the verdict.

The defendants below claimed the land in controversy, by virtue of a patent from the Commonwealth to Charles S. Bradford, dated February 8th 1837. The patent was founded on a survey, made January 19th 1837, in pursuance of a warrant issued January 11th of the same year. The plaintiff contended, that the land was not vacant when the warrant for the Bradford survey was granted, but that it was embraced within a patent, dated April 11th 1788, for a tract of land called "Bergen op Zoom." Whether it was so embraced or not, was the main question in the case.

The survey of "Bergen op Zoom" was made June 6th 1786, returned and entered July 5th 1786, and the warrant of acceptance was dated April 4th 1788. A patent was issued, dated April 11th 1788, which describes the land patented as "beginning at a hickory and white oak, thence by land of Oliver Ormsby, N. 8¾° E. 360 perches, to a post and sugar; thence, by other land of John Ormsby, S. 76° E. 148¼ perches, to a black oak; thence, S. 202 perches, by land of Charles Smith, to a black oak," &c. The John Ormsby warrant and survey was an older warrant and survey, and whether Bergen op Zoom extended to it was the main point in dispute. It did not, if the courses and distances of Bergen op Zoom survey, as returned by the surveyor into the land office, and as described in the patent, are to govern; it did, if the call in the patent is to prevail. The evidence in the case disclosed, that no marks were to be found upon the ground along the northern line, towards the tract of John Ormsby (the second line described in the patent). Marks of the survey were, however, found upon other lines. That the surveyor had been upon the ground was, therefore, established; but whether he ran the northern line, that returned S. 76° E. 148¼ perches, there was no other evidence, than what was furnished by the return of the survey itself. The defendants below requested the court to charge the jury, first, that after the lapse of forty years from the return of the survey into the land office, the law will presume that such survey was regularly made on the ground; and secondly, that if the jury was satisfied that one or more of the lines of the "Bergen op Zoom" survey were actually run and marked upon the ground, their necessary inference should be, that the whole survey was actually run and marked upon the ground. These propositions were preparatory to the inference, that the call in the patent for John Ormsby's line was a mistake, the land granted being only what was actually surveyed on the ground. The court replied, in substance, that "after the lapse of forty years, or even a shorter period, the law presumes that a survey returned by the proper officer was regularly so made and marked. But that this was only a presumption of law based on the necessity of the case, and might be rebutted by positive proof. For instance, where a line is alleged to have been run over ground which has never been cleared, where trees are still standing along the course of the line for a considerable distance, and where careful and skilful surveyors have made diligent search, and can find no marks whatever on the ground, more especially, if trees are found on the alleged line not marked, which would in all probability have been marked, if the line had been actually run on the ground, this evidence would be sufficient to overthrow the presumption of law that such survey had been actually made on the ground." The learned judge thus, in effect, instructed the jury that, although such a presumption arose after a long lapse of time, it would be rebutted by mere negative evidence, by the failure to find marks where marks might have been expected.

To this we cannot assent. Such is not the nature or the weakness of the presumption, which attends a survey returned without objection, for more than twenty-one years. It is more than a mere probability; it is presumptio juris et de jure, a legal conclusion. The marks which it is the duty of the surveyor to make on the ground cannot be permanent; posts and stones may be removed, either accidentally or by design; trees may be cut down, or decay; the progress of cultivation and improvement tends to obliterate them, and, just in proportion as the land increases in value, do the evidences of title furnished by the surveyor's marks disappear. Where lands have been improved, it would seem more reasonable to expect that no traces of the surveyor's line should be found after twenty-one years, than that any should remain. Titles would be insecure, indeed, if, after such a period, the absence of visible marks were held sufficient to invalidate a returned survey. Time, also, removes living witnesses; the surveyor and his assistants may die, and necessarily, therefore, resort must be had to the return itself, as evidence furnished by the officer of the law of what he has done. It is a legitimate deduction, that he performed his duty, and therefore that he actually made the survey upon the ground, and made it as he returned it; and, in analogy to the statute of limitations, for the certainty of titles, it has been found necessary to hold, that the presumption, that the survey returned was regularly made, is conclusive, even though no marks are to be found on the ground corresponding with the lines of the plot or draft. It is needless to say, that if the presumption be conclusive, there is no question of degree: that it is immaterial, how favourable the ground may be to the perpetuation of...