Tyrone M. & M. Co. v. Cross

• Citation: 18 A. 519,128 Pa. 636
• Decision Date: 14 October 1889
• Docket Number: 398
• Parties: TYRONE M. & M. CO. v. JAMES CROSS
• Court: Pennsylvania Supreme Court

18 A. 519

128 Pa. 636

TYRONE M. & M. CO. v. JAMES CROSS

No. 398

Supreme Court of Pennsylvania

October 14, 1889

Argued April 25, 1889

ERROR TO THE COURT OF COMMON PLEAS OF CENTRE COUNTY.

No. 398 January Term 1889, Sup. Ct.; court below, No. 28 April Term 1889, C.P.

On February 7, 1884, an action of ejectment was brought by J. R Lowrie, trustee, and by subsequent substitution the Tyrone Mining & Manufacturing Co., against James S. Cross, for a parcel of land in Halfmoon township claimed by the plaintiff to be a portion of a tract surveyed in the name of Richard Whitehead, an outline of which appears in the report of a former trial: Cross v. Tyrone M. & M. Co., 121 Pa 387.

At the second trial of the case, on December 5, 1888, it appeared that the Whitehead survey was made in 1785, but that it could not be located by marks on the ground. The Whitehead however, called for the Bryan, a survey of the same date, on the north.

In order to locate the Bryan, and thereby the Whitehead, the plaintiff called Thomas W. Moore, and proposed to show that the witness had examined the location of two tracts of land in the warrantee names of Benjamin Elliott and John McKissick, the two surveys being returned as made by John Cannon, deputy surveyor, on April 27, 1797; that he found line trees marked along the lines of the McKissick counting to the date of survey; that along the Benjamin Elliott there was no timber standing of sufficient age to bear the marks of 1797, but that he found sufficient original work to establish the location of the McKissick and Elliott, and that the Elliott calls for the old London surveys on the northwest and for the William King and Samuel Bryan on the southwest; and, in connection with this, the official survey of the John McKissick: The purpose of the offer being to show that John Cannon, the official surveyor, was upon the ground and made the surveys of the Elliott and McKissick, and when he returned the Elliott as lying around the northern angle of the Bryan and commencing at the pine corner of the Bryan, he had the means of knowing whether the Bryan was located on the ground.

Defendant's counsel object to the offer for the following reasons:

1. The McKissick is a survey 12 years junior to the Bryan and Whitehead surveys in controversy, and made by different surveyors, and is therefore not competent evidence to affect the location of the Bryan and Whitehead tracts.

2. It appearing by the testimony of the witness on the stand, also by the offer, that there are no marks or monuments on the Elliott, of the date of the survey of the said warrants, to wit: April 27, 1797, it is not competent to supply the omission by evidence of marks on the McKissick.

3. The Elliott and the McKissick, being warrants of different dates, are not shown to be a block of surveys, and the marks and monuments of the McKissick are not monuments of the Elliott.

4. It is not competent to determine or affect the location of the Bryan and Whitehead surveys by the proposed evidence, and it is irrelevant to the issue.

By the court: If the evidence embraced in the offer tended to show that John Cannon, the deputy surveyor, in running the line of the Benjamin Elliott in 1797, especially the line claimed by the plaintiff to be the northwestern line of the Samuel Bryan, on the ground, and by the north line recognized the pine corner claimed by the plaintiff to be the northwestern corner of the Samuel Bryan, and such corner being called for by the Samuel Bryan at the point where he marked the pine, we think it would be admissible. We do not think, however, that the offer tends to show the presence of John Cannon at that corner, and for that reason it is excluded and an exception is noted.

The plaintiff then offered an official survey of a tract in the warrantee name of Jacob Way, surveyed on May 14, 1817, calling for the Richard Whitehead on the north; also the official survey of a tract of land in the name of Henry Floyd, surveyed on May 10, 1820, calling for the Samuel Bryan on the west, surveyed in pursuance of a warrant dated March 15, 1820; also, a survey in the name of Foster Delige, surveyed on November 5, 1853, in pursuance of a warrant dated November 1, 1853, calling for the Samuel Bryan, on the west; to be followed by the evidence of the witness on the stand, that these three tracts are located upon the ground by lines and monuments counting to the date of the respective surveys, and in the position as indicated upon the plaintiff's map, and also, upon the official connected draft, already in evidence; the purpose of the offer being to show the boundaries of the Bryan and Whitehead as recognized at various dates by the official surveyors in locating subsequent surveys adjoining them, and to show that the entire territory in that region is covered by the official surveys long anterior to the application for the warrant to the defendant given in evidence, and that there was no vacant land there at the time of his application.

Defendant's counsel objected, (1) because the surveys named in the offer of plaintiff were junior in warrant and survey to the Whitehead and the Bryan, and were therefore incompetent to fix the location and the lines of said surveys, certified to have been surveyed many years before. (2) Because the offer did not propose to show that the land embraced in the surveys offered occupied by prior right the land in controversy. (3) Because they were irrelevant.

By the court: The evidence offered is excluded.

At the close of the testimony, the court, SIMONTON, P.J., 12th judicial district, holding special term, charged the jury as follows:

You no doubt understand very clearly and distinctly the nature of the claim of the plaintiff and defendant, respectively, in this case. Perhaps it will make the matter clearer for you, if we say the claim of the defendant and plaintiff as to location; for the plaintiff in the first place, as you will remember, gave in evidence the original title from the commonwealth of the Richard Whitehead tract, and there is no dispute as to his original title; the only dispute is, where the Richard Whitehead is located. The plaintiff having given his title in evidence rested. If the defendant had given no evidence, the plaintiff would have been entitled to a verdict. In that point of view, and to that extent, the defendant has the burden of proof. It was necessary for the defendant to give evidence to show that the Richard Whitehead tract was not located where the plaintiff claims it to be, and hence the defendant's evidence as to location came first. It may perhaps tend to clearness, for us to present it in that way.

You will remember that the defendant's testimony consisted mainly of the evidence of the surveyors, in the first place, as to the work they had found on the ground; their having gone to what has been called in the course of the trial, the fallen pine, at the northeast corner of Samuel Bryan, as located on the defendant's map. The surveyors told us of starting there, or their arriving there, by running the northwest line; they told us of the chestnut oak on the northwest line, as you see it on defendant's map; of the pitch pine; of the white oak on the eastern line of Samuel Bryan as they claim it to be located; and you have heard and well remember what other evidence they gave as to running around or over other parts of the tract. You will remember, in this connection, the evidence as to the age of those trees, as testified to by them, from their counting the blocks and from the blocks themselves, as they were produced in court; you will also remember the evidence as to the location of the cranberry swamp. The defendant contends that that swamp is called for in the application of the Samuel Bryan, to be within the lines of the survey to be made upon that warrant, and that it is called for to be within the lines of the survey in the return of the survey of the Samuel Bryan. It is not depicted upon the survey, but in the return of the surveyor of the fact of having made the survey, he states he has included the cranberry swamp, and the defendant contends that that is evidence of the proper location of the Samuel Bryan, the warrant calling for the survey to include the cranberry swamp, and the survey made upon it, being said by the surveyor to include it. [You will remember that the Samuel Bryan is involved here, for the reason that it is necessary to locate the Samuel Bryan in order to locate the Richard Whitehead. It is conceded by both sides that the location of the Samuel Bryan will locate the Richard Whitehead.]

You will remember in the same connection, of course, the evidence of the plaintiff as to these same matters; the testimony of the surveyors on cross-examination on behalf of the plaintiff; and the testimony of the surveyors called by the plaintiff as to these trees, and as to their ability to count them to the one hundred years, or so far as they were able to count them, to determine that they were marked for line trees, and their opinions, so far as they gave them, as to their being outside of range for line trees. All the evidence on the subject, given both by the plaintiff and by the defendant, should be taken into careful consideration in determining whether the location claimed by the defendant is the correct location or not. If you find there was and is a cranberry swamp within the lines of the Samuel Bryan, as it is claimed to be located by the defendant, we say to you, that that would be some evidence of the location; some evidence that that was the correct location. It would of course not be conclusive evidence, but it would be some evidence.

[The plaintiff contends that it would appear, or be readily inferred from the nature of the Richard...