Riddlesburg Iron & Coal Co. v. Rogers

The opinion of the court was delivered, July 7th 1870, by Thompson, C. J. I see not how a reversal of the judgment in this case is to be avoided, on account of the charge of the court in answer to the plaintiff’s 3d point. The point was, “ that while the marks on the ground, as a general rule, constitute the true survey, such marks must be in accordance with the bearings as near as may be, of the survey returned into the land office, and have some resemblance thereto.” This the court affirmed without qualification. This answer is in discord with the answers to the 2d and 4th points of the plaintiff. The former affirms, “ that there is not such a departure from the lines or shape of the survey returned in the draft of defendants as to prevent their holding the land according to it if it represents the actual survey made on the Mowing warrant.” If this were true the court might have declined answering the 3d point as being totally unnecessary. To the 4th the court said, “ there may be even a material departure from the [418] official survey as returned, if the marks on the ground require it, and that the marks and monuments on the ground may justify the inclusion of land which cannot possibly he within the courses and distances returned.” This was right in itself; but we fear it was controlled by the answer to the 3d point, which was in effect saying that notwithstanding all this it is only so, “ if the marks on the ground are as near as may be in accordance with the bearings of the survey returned into the land office, and have a resemblance thereto.” This was error, and damaging error in this view. The marks on the ground constitute the actual survey of a tract of land; the draft of it is hut the evidence of the survey, and will he controlled by them; so as to calls, courses and distances, all must yield to the marks and calls. The work on the ground is the original; the draft is no more in fact than the evidence of it, which from the nature of the thing is the evidence until corrected by the original, which is the work on the ground. The cases to prove this are too numerous for citation here. Some of them have been cited by the counsel for the plaintiff in error, and others of more recent date might have been cited. The instruction was undoubtedly erroneous, and for this we must reverse the judgment. It is no answer to such an error that elsewhere in the charge the doctrine may have been accurately stated, and that the whole question was submitted to the jury, under all the instructions as to the effect of the work on the ground. We could not affirm a judgment on such a verdict, without affirming an error. Besides, nobody can tell which instruction, the true or the false, weighed most with the jury. In respect to the refusal of the court below to allow the patent to go out with the jury: — Unless there were very special reasons for it, it violated a uniform practice in this Commonwealth, which is to send out with the jury all title-deeds and papers given in evidence on the trial. If this were the only assignment of error in the ease, we might require to be shown wherein it was probably prejudicial to the party complaining, before we would reverse. That does not appear, and we disapprove of the refusal, and as this case may again be tried, it will doubtless not be repeated without a controlling reason apparent on the record. Judgment reversed, and venire de novo awarded.