Keller v. Young

Mr. Justice Mercur delivered the opinion of the court, May 10th 1875. The facts necessary to an understanding of this ease are substantially these : The county of Clinton was created out of parts of Centre and Lycoming counties, by Act of 21st of June 1839, P. L. 362. The language of the act, designating the line between Centre and Clinton, was such as to produce uncertainty and give rise to dispute. By the Act of 11th of May 1848, Pamph. L. 504, [170] commissioners were appointed, whose duty it was “ correctly to run, and mark distinctly, the boundary line or lines between said counties, agreeably to the Act of Assembly creating Clinton county, the report of the commissioners to be final and conclusive.” The commissioners ran and marked the line; and made report thereof, with an accompanying draft, to the commissioners of the respective counties. It was subsequently ascertained that there was a discrepancy between the draft or report made by the commissioners and the marks upon the ground of that portion of the line running from the waters of Beech creek to the west branch of the Susquehanna river. To remedy this, the Act of 28th of April 1857, Pamph. L. 332, appointed commissioners, “ correctly to run and mark distinctly the boundary line between the said counties, from the west branch of the Susquehanna river to the waters of Beech creek, agreeably to the Act of Assembly creating Clinton county aforesaid ; and the commissioners shall make out two drafts, giving the names of the warrantees, who are known along said division line; * * * and in case there should be any discrepancy between the drafts made by the commissioners and the marks on the ground, the former shall govern and be final and conclusive.” These commissioners wholly failed to act, and the law became inoperative by its own limitation. Then, by the Act of 25th of February 1859, Pamph. L. 83, commissioners were appointed “ correctly to run and mark distinctly the boundary line or lines between the counties of Centre and Clinton; and it shall be the duty of said commissioners to lay down on their drafts the tracts through which the lines may pass, agreeably to the Act of Assembly creating said counties, and the supplements thereto.” They were further required “ to make out three drafts, one of which shall be filed in the commissioners’ office of each of said counties, and the other to be filed in the Surveyor-General’s oflice, and there kept as a matter of record.” The act further provided that “ the report of the commissioners shall be final and conclusive.” These commissioners, in the discharge of their duties, ran and marked the boundary line between Clinton and Centre counties, and made and filed the drafts required by the statute. In their report, they say “ the surveys, as represented, are correct in the respective counties.” On this draft the whole of the Peter Hahn tract' is laid down as situate in the county of Centre. The boundary line between the two counties is there represented as the eastern line of the tract. The boundary line, as actually run and marked on the ground, divides the tract and leaves a part of it, in the shape of a triangle, containing one hundred and seventy-three acres, in Clinton county. The courses and distances on the draft correspond with the marks on the ground. [171] The plaintiffs claim title to the one hundred and seventy-three acres through a sale in Clinton county as unseated land. The defendants claim the whole tract through a like sale in Centre county. The respective rights of the parties depend on the construction to be given to the Act of 1859, and the legal effect of the action of the commissioners under it. It is contended, on the part of the defendants, that inasmuch as the statute made it the duty of the commissioners “to lay down on their drafts the tracts of land through which the lines may pass,” and subsequently declares that “the report of the commissioners shall be final and conclusive,” therefore the Peter Hahn tract shall, in law, be held and adjudged to lie on that side of the boundary line, which the draft shall indicate, although in fact a part of it lies on the other side. Let us consider whether this view is correct. ■ The object of the Statute of 1859 was to ascertain the true location of the boundary line between the two counties. The marks on the ground were in conflict with the courses and distances indicated on the draft. The statute did not contemplate any line of separation different from that designated by the Act of 1889. It did not authorize any territory to be added to, or to be taken from, either of the original counties, not named in the act creating the county of Clinton. Commissioners had previously located the boundary line. Their return of survey did not agree with their work on the ground. The Act of 1859 sought to remove that discrepancy. Like former acts, it directed the commissioners “ correctly to run and mark distinctly the boundary line.” It was hoped their marks on the ground would agree with the courses and distances which they described on the draft to be returned with their report. The language appears to have been intentionally changed from the Act of 1857, under which no action was taken. The Act of 1857 appears to assume that the two might still vary. If so, the marks on the ground should yield to the courses and distances laid down on the drafts. The Act of 1859 gives no such controlling effect to the draft; but suppose it did, what then ? It says the report shall be conclusive. Conclusive of what? Manifestly of no more than of the correctness of the courses and distances declared in their report, of which the draft was to form a part. The courses and distances represented on the draft filed by the last commissioners are not in conflict with their work on the ground. Both agree. The one has no preference over the other. It is the tract of land which is made to interfere with both, but its actual location on the ground cannot thereby be changed. The commissioners were “ to lay down on their drafts the tracts of lands through which the lines may pass.” This was to facilitate [172] the finding of the county line. It gave no power to change the line of any tract of land, nor to move its corners. The commissioners were not authorized to re-locate any tract of land, nor to decide on which side of the county line any tract might lie. To them was given no judicial power beyond locating the boundary line, and establishing evidence thereof on the ground and in their report. The third section of the Act of 13th of June 1836, relating to public roads, declares the viewers appointed to lay out the same shall “ annex and return to the court a plot or draft thereof, stating the courses and distances, and noting briefly the improvements through which it may pass.” Has any one ever contended that the action of the viewers, in noting improvements, could transfer land to a side of the road different from the courses and distances on the draft, and the concurrent marks on the ground established it? In that case the object is the location of the road. In the case now under consideration, the object was the ascertainment and correct designation of the boundary line between the two counties. In the case of a road, the report becomes final and conclusive on confirmation by the court. In this case it was so made without any such confirmation. In either case, the noting of the improvements is merely directory, and cannot affect the actual location of the line, nor change, for any purpose, the land situated on either side. The learned judge, therefore, erred in instructing the jury to find a verdict for the defendants. Judgment reversed, and a venire facias de novo awarded.