Salmon Creek Lumber & Mining Co. v. Dusenbury

Mr. Justice Gordon delivered the opinion of the court, October 26th, 1885. We cannot agree with the learned judge of the court below that the name, “ George Meade,” written by the deputy surveyor, on the northwest of his separate drafts of the Mifflin surveys, was not of itself a call for the Meade line. It was, and could have been, nothing else. For what other conceivable purpose could the deputy have placed that name as it is found on the drafts, other than to show that warranted land of George Meade adjoined on the northwest? He knew the position of those lands, for he had surveyed both blocks upon the same day, and we cannot suppo.se that, departing from his official duty, he [452] designedly intended to leave a narrow, oblong vacancy between the ,two. The surveyor general certainly understood from the return of his deputy that the George Meade tracts were adjoinders, for he so certified. But the deputy himself has left us in no doubt as to what he intended, for in his certificate attached to his survey of Jonathan Mifflin tract, No. 5101, he sets down the fact that the name, “ George Meade,” 5282, written near the northeast line of the tract, did mean an adjoinder. So, ón all his separate drafts he sets down in his certificates one of the names thus marked, as, for instance, “Jonathan Mifflin,” as an adjoinder. If, then, one of these names so placed in the margin of the draft is, beyond controversy, to be taken as an adjoinder, we certainly cannot hesitate as to the others which are marked in precisely the same manner. But no such explanation is necessary to fix the meaning of words so’ placed; they are part and parcel of the survey, and as infallibly indicate adjoinders and the adoption of the lines of such adjoinders, as do the calls for trees and other objects indicate corners and the courses of lines on the ground. The doctrine here stated is settled in point* in Younkin v. Cowan, 10 Casey, 198, but an attempt is made to break the conclusive force of this case by the argument that the warrant was descriptive. But a warrant of this kind is located, not by the survey, but by its calls, and one that cannot be so fixed on the ground is not descriptive. In the case cited, however, the location was by survey, and upon its calls the question turned. But admitting that the warrant was as claimed, that does not affect the fact that the names on the margin of the draft, “ William Plunket,” “Abraham Witmer” and “ Martin Foutz,” without more were recognized as calls for adjoinders and controlled the survey, and this though no mention of either of them was made in the deputy’s certificate. This same doctrine is recognized by Mr. Justice Woodward, in the case of Quinn v. Heart, 7 Wr., 337, as any one can discover by reading the opinion. The fact is, what is here stated never was and never would have been doubted but for the dictum found ip Ormsby v. Ihmsen, 10 Ca., 462, in which case the learned justice who delivered the opinion fell into the error of supposing that, after twenty-one years, an absolute presumption was raised that the lines of a survey were run on the ground as described in the official draft." That a position of this kind must be regarded as radically wrong is obvious from the fact that it makes the official courses and distances control not only the calls, but also the lines that may be found on the ground. For the purpose of quieting titles and settling disputes that must otherwise inevitably arise from chamber surveys, a presump■ [453] tion sucli as stated is raised in favor of their location on the ground. But that presumption goes no further, for they must have, after all, actual and not merely presumptive calls, so that their location can be certainly fixed, otherwise they are good for nothing. But even this case does not help the ruling of the court below in the case in hand, for there the lines of the call were run at an angle with the line of the official draft, and there was a call for a black oak at the one end of that line. Here, on the contrary, there is no call for a corner, and the line on the Mifflin block is identical, as to direction, with that of the Meade surveys. Now we of course agree that the effect of the call may be rebutted by such facts and circumstances as tend to show that the surveyor did not intend to limit his survey by its calls, or what otherwise might be taken as calls, as in Henry v. Henry, 5 Barr, 249, where it is held that lines and marks found upon the ground will rebut the presumption of an intention on part of the artist to adopt the line of an adjoinder; so in Kelly v. Graham, 9 Watts, 116, and Wharton v. Garvin, 10 Ca., 340, where the surveyor indicated his intention by leaving a vacant space between his closing line and the calls marked on the margin of his draft. In such cases the design becomes obvious from the unambiguous act of the artist. So would it have been as to the subject of the present controversy had the deputy drawn on his maps the northwest line of the Mifflin block and the southeast line of the Meade surveys as distinct lines, leaving a vacancy between them; but as it is, they have but a single line in common, hence conjecture is excluded. And in this connection we may here observe that, had the surveyor adopted the Beech corner of 5282 as a corner of the Mifflin tract 5101, that would of itself have determined the northwest line of the Mifflin block; but as lie did not do so, that fact strengthens the position of the plaintiff, for why he did not adopt that corner if he intended the line of the Mifflin block to be other than the Meade line is inconceivable. With the Redman survey the ease is different, for as there is no call for an adjoiner on the northwest, the official distances must govern, and they must determine its length in that direction. As what we have said fully disposes of all the assignments of error, we need not refer to them seriatim. The judgment is reversed and a new venire ordered.