Darrah v. Bryant

The opinion of the court was delivered, October 31st 1867, by Strong, J. On the trial of this case in the court below the contest was over the question whether the land in dispute is a part of a tract surveyed in 1794, by virtue of a warrant granted to Willink & Co., and numbered 2768. The allegation of the [73] plaintiff was that the survey extended eastwardly to a marked line, the western boundary of tracts surveyed about the same time, under warrants granted to the same warrantees, and numbered 2744 and 2750. On the other hand, the defendants contended that the survey of 2768 stopped 37 perches short of the west line of the other two tracts, thus leaving a gore of unappropriated land. The west line of tract 2768, and the west line of the two tracts 2744 and 2750, were not in dispute. They were well marked upon the ground and they are traceable. It is the location of the east line of 2768 which was the subject of controversy. The return of the survey called for the tracts 2744 and 2750, as its eastern boundary, hut the distance from its west line to those tracts falls short of the actual distance about 63 perches. On this state of facts the learned judge in the court below instructed the jury in substance that in locating it the survey was to be carried to its calls for adjoiners, though it overran the distances returned. It is not denied that as a general rule, where lines are not actually marked on the ground, a survey is to be carried to its calls for adjoiners, though in so doing the distances returned on the survey must be extended. Ordinarily a call for adjoiners prevails over distances : Younkin v. Cowan, 10 Casey 198; Cox v. Coach, 8 Barr 147; Mathers & Boynton v. Hegarty, 1 Wright 64. It is true that lines marked on the ground for the survey, or adopted by the surveyor, are to be regarded rather than calls for adjoiners, and when there is a discrepancy, the lines govern, controlling both distances and calls for adjoiners. And had there been any evidence here that the surveyor had marked upon the ground any line as the eastern boundary of the tract 2768, or that he had adopted a line previously made, the instruction given to the jury would have been erroneous. But there was no such evidence. No line was marked upon the ground at the distance of 412 perches from the west boundary of the tract, the length east and west of the survey as returned. Nor is there any line found marked, or made for the survey short of the west boundary of the tracts called for as adjoiners. At the distance of 438 perches from the w'estern boundary of 2768, there is a north and south line marked upon the ground, and the effort of the defendants below was to establish this as the east line of the survey. But it was conclusively shown, and not even denied, that the line was made for another purpose than as a boundary of the survey. It was made seven or eight years before the survey as a district line dividing two deputy surveyors’ districts, and in 1792 it ceased to be a district line in consequence of the consolidation of the districts on each side into one. After the union of the districts the line was of course legally obliterated, and the deputy surveyor of the new district [74] was not bound to notice it in making his surveys. It was competent for him to run his surveys across it as if it never had existed. Not having been run for the plaintiff’s survey, the fact that it is traceable upon the ground still, is a fact of no importance in the absence of all proof that it was adopted as a boundary. It is not to be treated as a marked line made at the time when a survey was made, the existence of which could not be accounted for unless it was made as a boundary line. Undoubtedly the surveyor could have adopted it, and thus made it the east line of the tract. But not a particle of evidence was given of any such adoption, nothing which should have been submitted to the jury to open the question whether there had been any. The survey as returned calls for adjoiners, not for the district line, or any other than the boundary of the two tracts, 2744 and 2750, and the distance of the eastern boundary returned falls 26 perches short of the district line. There is therefore no correspondence between the distance and the position of that line. It is plain that the lines from east to west were not actually run on the ground. The surveyor did not therefore come to that line, and hence there was nothing to control the evidence of location exhibited in the return. At most the case presents a call of one survey for another as an adjoiner, and no lines found to have been run for the first, or adopted ; nothing to contradict the call, unless it be the distances returned. In such a case the line of the survey called for invariably becomes the division line of the two tracts, in the absence of proof of mistake or fraud. And mistake or fraud is not shown by the fact that thereby a greater number of acres are included in the first survey than the number mentioned in the surveyor’s plot as returned. In the present case the contents of lot No. 2768 were returned as 8504-acres, and if the survey is carried to the adjoiners called for, it is said the tract contains 123 acres more. This is not a greater excess than is often found in proportion to the size of the survey. If the warrantee thereby obtained too much land, it was for the Commonwealth to object. It is not for a' junior warrant-holder to lay his warrant upon any part included in the elder survey so long as the state does not complain: see Hagerty v. Mathers, 7 Casey 355; Younkin v. Cowan, 10 Casey 201. These observations lead to the conclusion that there was no error in the instruction given to the jury complained of in the first three assignments. The 4th assignment is that the court erred in their answer to the plaintiff’s 4th point, which was as follows: “ That the surveys Nos. 2768, 2770, 2777, 2811, 2744, 2750, being made and returned into the land office in blocks, they are to be located on [75] the ground in blocks.” To this the court answered, “ whether the tracts enumerated were surveyed in blocks or not is referred to the jury. If they were, we answer this point in the affirmative.” There is certainly no error in this of which the defendants can complain. There was abundant evidence that those surveys were made in blocks. They were on warrants to the same warrantees, issued the same day, all to Brady, the deputy surveyor, surveyed in the same month, returned into the land office on one day, and they called for each other, those on the west calling for the east, and those on the east calling for the west; and if they were surveyed as a block, they must be located as a block; Hagerty v. Mathers, 7 Casey 355; for the location must correspond with the survey. The only other question in the case was whether there was any evidence of an estoppel to the plaintiff against asserting that the east line of 2768 was the western boundary of tracts 2744 and 2750. Clover’s title, that under which the defendant claimed, commenced in 1863. His survey was made on the 1st of April in that year. But prior to that time, J. J. Y. Thompson, who owned lot 2768, had conveyed it to the plaintiff by deed describing it as bounded on the east by the district line, and the deed was recorded. This deed was made on the 14th of August 1856. Thompson also made a survey of the land east of the district line for Clover on the 2d of June 1857, by virtue of a warrant granted to John Nicholson, but the survey was abandoned. He said also some time after that he had no doubt the land was vacant. If there had been any evidence that these'acts and declarations had been communicated to Clover before he took out his warrant and had his survey made, and that he had acted in relianee upon them, there would have been some evidence to raise an estoppel. , But there was no such evidence. It is manifest that Thompson was ignorant of the lines of his own tract. He had bought a tax title, and was not informed of its extent: But on the 16th of August 1859, having doubtless ascertained where the true line was, he conveyed the part of the tract lying east of the district line to the plaintiff. This second deed was recorded on the 6th‘of December, in the same year. When, therefore, Clover caused his survey to be made on the 1st of April 1863, he was informed not only by the records of the land office, but by Thompson’s two deeds on record in the county, that the entire land, up to the western boundary of 2744 and 2750, had been appropriated. Of course there was no basis for an estoppel. It follows that the defendant was without any valid defence, and that the jury were properly instructed that the plaintiff was entitled to a verdict. Judgment affirmed.