Wharton v. Garvin

• Decision Date: 01 January 1859
• Citation: 34 Pa. 340
• Parties: Wharton versus Garvin.
• Court: Pennsylvania Supreme Court

Page 340

34 Pa. 340

Wharton versus Garvin.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Westmoreland county.

Cowan, for the plaintiff in error.—The location of a warrant is always a question of fact; it cannot be one of law; and, therefore, the court below erred in taking the decision of it from the jury. The courses and distances run on the ground are the true survey; the return is only evidence of it, but not conclusive: Lilly v. Kitzmiller, 1 Yeates 28; Mills v. Buchanan, 2 Harris 59.

Foster, for the defendant in error.—To authorize the court to submit a question of fact to the jury, there must be some evidence of it. The court, in this case, did not say that the location of a warrant was a matter for the court, not the jury; but only that there was no evidence, that would warrant the jury in finding, that the land in dispute was embraced in the plaintiff's survey. He cited 5 Binn. 77; 4 W. & S. 55; Kelly v. Graham, 9 Watts 116.

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

We have a very unsatisfactory report of the evidence in this case, and no draft of adjoining surveys, or of the supposed interfering survey. A full and accurate presentation in these particulars, would have been valuable aids in this examination. As we have them, however, only in deficient form, we must dispose of the question raised by the best lights in our possession.

The learned judge of the Common Pleas charged the jury, as a matter of law, that from the face of the warrant, survey, and patent, the lines of the Wharton survey did not go to the Allegheny river, and that the plaintiff was not entitled to recover the land in dispute. The only assignment of error is to this instruction.

The north and south lines of the Wharton survey were found on the ground, but did not reach to the river, on the north, by 40 perches, and on the south, by 19. The closing or west line we must treat, in view of the charge of the court, as not having been actually run on the ground, although it would seem, that there was some evidence given by the defendant on this point. The survey, as returned, did not exhibit a protraction to the river, and the closing or west line, as represented by the draft, was a straight line 238 perches long; leaving a vacant strip, the land in controversy, apparently excluded from the survey. The return of survey does not call for the river as a boundary. It is true, the river is plotted on the survey, but it is represented as at some distance west of the closing line, with the words written within the representation, "up Allegheny river." The patent dated June 18th 1841, describes the south boundary as "running north 55 degrees west, 68 perches, to a post near the Allegheny river; thence, north 35 degrees east, 238 perches, up along near said river to a post," &c. This is the west and disputed line. The warrant is not before us. It was probably indescriptive, and would not aid in the question of location.

Generally, a survey is to be carried to its calls, unless there are actual lines on the ground excluding them. In that case, the lines on the ground will control the calls, for they constitute the survey. But when there are no natural monuments or lines called for, by which the closing line is to be fixed and ascertained, and no line on the ground, it follows, of necessity, that the survey is to be closed by a direct line between the termini of the lines on the ground, or as fixed by the courses and distances returned, to ascertain these termini. It was ascertained, in this case, that the north and south boundaries, by their courses and distances, did not reach the river by the number of rods already stated. And if we are to discard the river as a call, then the west boundary must necessarily be closed by a...