Hall v. Tanner

Burnside, J. The court were right in -declaring that neither the town lots nor the reserved tract (which .were supposed to adjoin and- lie adjacent' -to the town lot's) were open to settlement. The town lots and the .-reserved tract, were appropriated to public use. ' • The act-of the 3d April, 1792, (3 Smith’s Laws, 71,) offered for sale-and settlement all the vacant lands of.the Commonwealth, '« except those appropriated) and which hereafter shall be-appropriated, to .anypub-li’c and charitable use.”. See 3Smith’sLa.ws, sec.2, page 71. Tanner, the plaintiff, showed on this trial that he was the owner of reserved tract, No. 20, which, in the return-draft, called for adjoining the Warren town lots. The defendant set up title by survey [247] settlement, and warrant in pursuance thereof on the 13th July, 1834, and patent on the 5th September, 1836, for fifteen acres and one hundred' and fifty-two perches, lying between the survey of reserved tract, No. 20, and the town lots. The survey of No. 20, on. the side next the town, called for four courses. Of the five courses called for on that side, two were white oak, and oné hickory, and two posts, and there-was, evidence, from which a jury could hardly doubt but that these four courses were actually run and marked for reserved tract No. 20. • But the judge took the case from the jury, and instructed them that the plaintiff had a good title in law to the part in dispute; that there was no vacancy, because the survey of No. 20 called for the town lots. In this there was manifest error. It has ever been held that the marks on the ground constitute the survey; that the courses and distances are only evidence of the survey. This is found in every reported case in our books. In more than one case, it is said, the law is so settled for ever. I need only refer to Walker v. Smith, 2 Barr, 43, w’here the subject is fully considered, and the authorities collected. I know of but one case, Martz v. Hartley, 4 Watts, 262, where there is an unfortunate dictum that the case did not warrant, that has misled more than one president judge, and carried several lawsuits. That dictum has been fully remarked on in 2 Barr, before cited, and I need not again review it. Mageehan and Adams, Walker and Smith, as well as other cases, settled, that when a surveyor, in the execution of a warrant, run and actually marked the lines on the ground, and returned by these lines, and then called for an old line or an old surve}^ as adjoining, the owner could not extend his title to the survey called for. He was bound by the survey on the ground. Instead of it being a question of law, it was a question of fact for the jury, under the whole evidence, whether the original survey and return of reserved tract No. 20 included any of the land within the survey and patent of the defendants. But it is contended that, admitting the law as laid down in Walker v. Smith, 2 Barr, 43, the reserved tracts, by the act of the 11th April, 1799, (3 Smith’s Laws, 381,) were to be surveyed adjoining the town lots. There is no doubt the act of the legislature did so contemplate. In that the act is only directory. Is the Commonwealth to be cheated out of her vacant land, either by the ignorance, carelessness, or fraud of her agent ? Tanner has title to his survey No. 20. Beyond the lines of that survey, run on the ground, he has no title. If his survey had not been run and marked on the ground on the side next to the town of Warren, and his return-draft called for the [248] town lots, he would have gone' to the call; but be is estopped by a rule of- property, which can never be departed from, going beyond his return-draft, when the lines of that draft have been marked and run on the ground. Judgment reversed, and a venire de novo awarded.