Quinn v. Heart et al.

• Decision Date: 30 June 1862
• Citation: 43 Pa. 337
• Parties: Quinn <I>versus</I> Heart <I>et al.</I>
• Court: Pennsylvania Supreme Court

43 Pa. 337

Quinn versus Heart et al.

Supreme Court of Pennsylvania.

June 30, 1862.

ERROR to the Common Pleas of Northumberland county.

COPYRIGHT MATERIAL OMITTED

Joshua W. Comly and William M. Rockefeller, for plaintiff.

John B. Packer and G. F. Miller, for defendant.

The opinion of the court was delivered, June 30th 1862, by WOODWARD, J.

When the Philip Fishburn warrant was surveyed in 1797, John Aurand was the owner of the Thomas Lowry survey, which had been located in 1769, as well as of the small survey in the name of John Aurand, made 1st December 1773. The Fishburn survey calls for John Aurand on the northwest, and it is supposed that that call means both surveys — the one made on the Thomas Lowry warrant as well as that made on the warrant to John Aurand. The return of the Fishburn survey favours this supposition, for the name John Aurand is marked as bounding the whole of the wide end of the Fishburn tract. John Thompson is another adjoiner correctly laid down on the Fishburn survey, and the line from the pine corner between these two tracts, N. 1° W. 55 perches, thence S. 66° E. 88 perches to a chestnut oak, brings the Fishburn alongside of the John Aurand survey. But the next official line of the Fishburn, S. 57° E. 110, carries it away from the Aurand survey without taking it to the Lowry. Yet it is along both of these lines that John Aurand is called for. If we take the defendants' theory, that the call for John Aurand meant not only the survey in that name, but also the survey in the name of Thomas Lowry, then the line S. 57° E. must be rejected, and four other lines and corners substituted to carry the Fishburn up to Lowry. That would exclude all vacant land, and the warrant to Quinn, which was surveyed 18th August 1854, would take nothing. The plaintiff objects to this process. She insists that the lines of the Fishburn shall be run as they were returned into the land office. If so run, I repeat that they will not reach the Lowry survey, and vacant land lay there in 1854 to satisfy the Quinn warrant. There are no marks on the ground to control the location of the line S. 57° E., and the question is therefore whether the Fishburn warrant is to be located by its calls of adjoiners or by the lines returned into the land office.

On this question the surveyors opposed each other, like the poles of their needles, as indeed surveyors are apt to do. Those called on the part of the plaintiff insisted upon locating the Fishburn survey according to its official lines, and thus make room betwixt it and the Lowry survey for the Quinn warrant; whilst those whom the defendants called, would locate the Fishburn by its adjoiners, and thus exclude all vacant land betwixt it and the Lowry. Both sets of surveyors gave their reasons at length, and with great minuteness of detail for what they would respectively do; and the learned judge referred their testimony to the jury, who decided for the defendants, which was in effect to establish the Fishburn survey, with Lowry for an adjoiner, and to exclude all vacant land. Thus the question in the cause has been fairly decided as a matter of fact. The location of a survey, that is, the ascertainment of the ground on which it was laid, is generally a question of fact for the jury, and in this instance it was most properly submitted to them. Now the only ground on which a...