Pruner v. Brisbin

Mr. Justice Steerett delivered the opinion of the court The controlling question of fact for. the jury in this case was as to the true location of the four warrants under which defendants derive title. In July 1793, these warrants together with- nine others were located in a block, and patents for each of the tracts were afterwards granted to Bichard Peters. The title under which the plaintiffs claim is based on two warrants, issued to them respectively in 1859, and surveys made in pursuance thereof in October of that year. If, as they contend, the land in controversy was then unappropriated they were clearly entitled to recover, but, on the other hand, if it was included in the block of surveys made in 1793, it is equally clear the verdict was right. It was not denied that a survey of the thirteen tracts composing the block was made on the ground in 1793, but the dispute was as to where the warrants were actually laid. The location contended for by the plaintiffs is the width of two tracts, or four hundred and sixty rods, directly north of that claimed by the defendants. Which of these is the true location was, therefore, the cardinal question in the case. The manner in which this and other questions of a subordinate character arose, and the principles of law [210] by which the jury should be governed in reaching a correct conclusion were so fully and clearly explained to them by the learned judge who presided at the trial that they could scarcely fail to have an intelligent understanding of the case. They were instructed, inter alia, that the thirteen tracts having been surveyed in a block, and so returned, must be located upon the ground as a block ; that neither of them can be arbitrarily located in disregard of the lines and corners found upon other parts of the block. All the lines and corners marked upon the ground and returned must be considered in ascertaining the proper location of the block. Those found upon any part of tne block belong to each and every tract of which it is composed, and if sufficient lines and corners can be fount! they .determine the location of the entire block without regard to its calls for adjoiners, or for waters, if such calls conflict with the lines actually run upon the ground and returned. The calls in a survey for waters, such as springs, ponds, and streams, must be considered by the jury in determining its location, but the value of such evidence must depend upon circumstances. If the surveyor, instead of going upon the ground and there running and marking the lines, merely plotted the survey in his office, little accurate knowledge of the location of waters, and his call he could have for them would be but slight evidence of their existence. It requires neither argument nor citation of authorities to show that the learned judge was clearly right in thus instructing the jury. The plaintiffs have failed to furnish us with the testimony, as required by the rules of court. In so far, therefore, as it becomes material, we must be guided solely by such reference to the evidence as is contained in the charge of the court. Considering the assignments of error in connection with the charge, as a whole, and in the light of the facts as therein presented, we fail to discover any error that would justify a reversal of the judgment. It appears that the two northern tracts of the block, the Jacob Cox and Henry Shaffer, are represented as having streams crossing their respective northern boundaries, and flowing in that direction towards Clearfield Creek, and that by adopting the location contended for by plaintiffs these calls will be an swered by streams actually on the ground ; but, if defendants’ location, four hundred and sixty rods further south, be adopted, these calls are not answered. The plaiutiffs regarded this as an important element in their case, and part of the charge relating thereto has been assigned for error. In calling the attention of the jury to the subject, the learned judge said : “If the northern iine of these two tracts was run on the ground by the sur [211] veyor wlio made the return, these calls for streams would be important ; but, if the line was merely plotted and not run upon the ground, the calls for these streams should have but little weight in determining the location of the surveys. W he.ther the northern or southern location be adopted, no surveyor has found the northern line of the block on the ground. The fact that the Jacob Oox calls for a post at its northeastern corner, would indicate that this line had not been run upon the ground. If it was not run, the calls for waters crossing it are not important or significant.” "When considered in connection with other portions of the charge, wherein the principles applicable to marks actually made by the surveyor and found upon the ground, calls for adjoiners, streams, etc., are clearly stated and explained, the instructions complained of were entirely adequate. It was left to the jury to say whether the northern line, which the streams are represented as crossing* was actually run upon the ground by the surveyor or not. ■ If they found it was, the call for streams would be important. More than this the plaintiffs had no right to ask, especially .in view of the significant fact stated by the court, that “ no surveyor has found the northern line of the block upon the ground.” In the absence of the testimony, or anything to show that this statement was not warranted by the evidence, we must accept it as an undisputed fact in the ease. The other calls in the return of survey for the locust and the hemlock sapling on the northern line of the Jacob Cox and Henry Shaffer tracts were not entitled to much consideration if the line itself was not found on the ground by any of the surveyors. In affirming defendants’ sixth point, the jury was properly instructed that the block of 1793, as returned to the land-office, must be located by its own marks and not by calls of later surveys, or by marks found upon the ground younger than 1793 ; that the location of the Drinkfers, Barton, and other surveys of 1794, could have no weight in determining the location of the block in question. The instruction thus-given is clearly right, and not in conflict with the principle recognized in Kennedy et nm. v. Lubold (7 Norris 246), and other cases cited by the plaintiffs. In the first of these eases a question arose as to the admissibility of declarations made by two surveyors while professionally engaged, many years before, in the examination of monuments on the ground; and it was held that their declarations made at the time, as to the corners “ found, blocked, and counted, were part of the res gestae, and so far from being doubtful evidence, were competent, and always admitted when the transaction was old and the surveyor dead.” This principle has no application to the facts of this [212] case as they are presented to us. The other authorities cited in support of the second asssignment are also irrelevant to the question involved therein. The defendants’ ninth point was : “If the jury believe the testimony of defendants’ witnesses, that the hemlock sapling, the locust, the hemlock, the hickory, the birch and maple on the one line ; the white oak, the- double sugar, the hemlock, the pine, and the hemlock on the other line, and the maple and the pine on the western end of the Benjamin Johnson, as defendants lay it, were on the ground marked as corners, dating to 1793, with lines to and from them of the same date, corresponding with the thirteen tracts, these corners and lines constitute the survey, control the call of the Casper Haines for the white oak and surveys of 1784, and the verdict must be for the defendants.” There was an abundance of testimony on which to base this proposition and justify the submission of the same to the jury. One of the witnesses referred to in the charge of the court, testified that over fifty years ago he rah the lines of the block of surveys in question, and spent about a week in trying to locate the thirteen tracts from the call of the Casper Haines for the Anderson white oak, but could find no lines or corners corresponding with that location. The same witness testified that he found the block well located by lines and corners on the ground, two tracts farther south, and interfering very considerably with the Phillips surveys; that he there found several living corners corresponding with the returns of survey, and constituting a majority of all the corners called for in the block. If this and other testimony of similar import was believed by the jury, the fact was conclusively established that nearly all the lines and corners, returned for the block of surveys in question, were actually found upon the ground which the defendants claim to be the true location. It matters not that these lines and corners wei’e found many years ago, before the inception of the plaintiffs’ title. The question is, Where was the block located in 1793 % and the testimony of surveyors who went upon the ground for the purpose of ascertaining the lines and corners of the tracts composing the block, and there found the living line and corner trees is undoubtedly entitled to great consideration. The lines and corners thus established to the satisfaction of the jury, constituted the survey, controlled the call of the Casper Haines for the white oak and the surveys of 1784, and thus conclusively settled the vital question against the plaintiffs. It follows that there was no error in aflirmingthe point, and the third assignment is not sustained. There is no substantial error in either of the answers covered by the fourth and fifth assignments. The case appears to [213] have been well’ tried, and we find nothing in the record that calls for a reversal of the judgment. Judgment affirmed.