Dillon v. Mattox

By the Court, McDonald, J. delivering the opinion. [1.] The certificate of the County Surveyor was admitted for all that it could legally prove, and perhaps more. The certificate, as an original paper, was not evidence. The certificate of the Surveyor, so far as the document was concerned, could do no more than authenticate a copy from the record in his office, and that might have been submitted to the jury to prove the locus. This seems to me to be the proper construction of the acts of 1819 and 1830. Cobb 272 and 273. The latter act, from which it is claimed that official certificates of matters of fact are admissible evidence, cannot, in my opinion, receive such a construction. The proviso would, forbid it, for it declares that nothing in that act contained “shall be so construed, as to prevent any Court to require the production of the original to which said certificate may appertain.” The plat of the premises sued for, and the certificate appended thereto, to prove that the plaintiff had exercised acts of ownership over them, and that he was in possession in 1841, were inadmissible for that purpose. The processioning of lands, or a resurvey, is not evidence of cither possession or ownership. They maybe evidence of metes and bounds. The only case in which the law makes the plat of a survey, when recorded and certified by the County Surveyor, [117] admissible as evidence of title, is when, the route of a water course, which is the boundary of a tract of land, is so changed as to leave the whole or part of the tract of land on the opposite side from that on which it was at the time of the survey, and the County Surveyor is called on to make an accurate survey of the part of the tract cut off. Cobb 718—719. [2.] The certificate contains statements which cannot be proved in that way: 1st. That the lands were- owned by John Dillon. 2nd. That they were granted to the individuals named. 3d. That they were surveyed in 1832-3, and resurveyed in 1841. The first two points, it is proper to say, are immaterial in this case, as the plaintiff had submitted competent evidence to the jury in reference to the same matter — the grant to Williams and the deed from Williams to plaintiff’; but the resurvey cannot establish a possession to bar him Who has the rightful title. A possession, to have that effect, must be open, notorious, visible and continued. An entry, merely for resurvey, is neither an open, notorious nor a continued possession, and is perfectly consistent with an acknowledgment of the better title of the other party. To bar the older title, there must be a possession, such an one as may indicate to the owner that there is an adverse claimant of his land. Passing through a tract of land, or around it, and marking trees, is no such possession. It is no disseizin. The Court was therefore right in rejecting the evidence, whether we consider the mode of proof, or its relevancy to the issue; and the judgment must be affirmed. Judgment affirmed.