Cross v. Tyrone M. & M. Co.

Opinion, Mr. Justice Williams : This action was brought to recover that part of the land surveyed in the name of Richard Whitehead, which lies “ west of [398] the part, leased to the Juniata Mining Co., bounded,” etc. The defence was that the Richard Whitehead survey did not cover the land in controversy. The true location of the Whitehead was therefore the real point in dispute. There seems to be no difference of opinion about the fact that the survey of the Whitehead was a chamber survey, no marked trees or natural monuments being called for in the official return, or found upon the ground. The calls for adjoiners as returned to the land office are for vacant land on the east and south, for William Burge on the west, and for Samuel Bryan on the north.' The call for Burge on the west was a mistake, as there is no tract in the name of Burge warrantee adjoining the Whitehead as located by either of the parties. The Samuel Bryan, however, is located on the north, and was surveyed on November 11, 1785, the same day on which the survey of the Whitehead'purports to have been made, and calls for the Whitehead on the south. In order, therefore, to locate the warrant in controversy it is necessary first to locate the Bryan survey. The official return describes the Bryan thus: “ Situate in or near the Half Moon Run, adjoining land of William Burgess, Mr. Weston, and others, including the cranberry swamp, containing two hundred and ninety acres and sixty-four perches and allowance; ” and the adjoiners shown by the draught of 'the survey, are vacant land on the east, the Richard Whitehead on the south, Mr. Dougherty in the angle of the west line, and from the post at the northwest ’ corner to the pine at the extreme northern end of the tract, vacant land. The Bryan must be located, therefore, by reference to its call for Dougherty, by the pine corner at its northern extremity, and such marks of the original survey as may be found upon its lines. In the angle of the west line where the Dougherty is called for, there is a warrant in the name of William King. No tract in the name of Dougherty is found in the neighborhood, but the plaintiff alleges and gave evidence to show that one Bernard Dougherty was a part owner of the warrant on which the King tract was located, when it was placed in the hands of the deputy surveyor; and as the Bryan was located seven days earlier than the King, he argues that the name of Dougherty, a part owner, was used at that [399] time instead of King, by inadvertence, and that the survey in the name of King is the one intended where the name of Dougherty appears on the return. By the aid of the King survey, and the pine corner at the north end, which the plaintiff alleged to be a well-known original corner, the plaintiff located the Bryan, and adjoining it on the south the Whitehead, thus bringing the land in controversy within the lines of the Whitehead. The defendant undertook to locate the Bryan without regard to the King survey, or the alleged pine corner. His position was that the lines of the Bryan, or some of them, were actually run upon the ground, and that at least two of the trees originally marked rrpon the east lines were still standing, and must control the location. Starting from an alleged northern end of the east line, the defendant ran south along the line of the marked trees far enough to inclose the pools or marshes spoken of by witnesses as the “ cranberry swamp,” and then ran west the official distance; thus fixing the south line of the Bryan and the north line of the Whitehead. By this location the land in controversy would be excluded from the Whitehead and left wholly or mainly on the north side of it. The plaintiff’s location by the white-pine corner and the King survey carried the tract considerably further north and west. The question for the jury was, which of these locations is the true one. To guide the jury in this inquiry the defendant asked the court to instruct them that “ the highest evidence of location is the original marks or monuments on the ground called for in the return of the deputy surveyor; and if the jury believe that the marked trees testified to by defendant’s surveyors, and the cranberry swamp, are original monuments or marks of the Samuel Bryan survey, then this fixes the location of the Bryan, and the verdict must be for the defendant.” The learned judge made reply as follows : “ That point is refused, because it is the duty of the jury, under all the evidence in the case, to find as a fact the true location of the land in dispute.” The unqualified refusal of the instruction asked for was clearly wrong, and the reason given for the refusal is not pertinent or responsive to the proposition embodied in the point. Here were two conflicting theories of location presented to the [400] jury. One of these rested on the white-pine corner and the call for the King survey. The other rested on the alleged original marked trees in the east line and the position of the cranberry swamp. Winch should the jury adopt? That depended, as the learned judge said in his answer, on what they should conclude from “ all the evidence in the case.” But the hypothesis of the point was, that the jury had closed this inquiry and come to the conclusion that the marked trees and the cranberry swamp were “original monuments or marks of the Samuel Bryan survey;” and asked the court to say that if so they were “the highest evidence of location,” and would fix the lines of the Bryan tract. This proposition should have been affirmed, with such explanations as the learned judge might have deemed necessary to make himself clearly understood by the jury. If, “under all the evidence,” as the point assumed, the jury had come to believe that the marked trees relied on by the defendant were made by the deputy surveyor to mark the east line, and that the pools which he alleged constituted the cranberry swamp were included in the survey and referred to in the return as a natural monument of the location, then they must reject the contrary proposition that the King survey was that referred to as the Dougherty, and the white-pine corner as fixed by the plaintiff was the true northern point of the survey. In that event what effect should be given to their finding upon this question of fact? ' The point asked the court to say that such a finding would, under the legal rules applicable to surveys, be conclusive on the question of location; but the learned judge refused so to say, and instead thereof told the jury that it was their duty to fix the true location from all the evidence in the case.o This was not responsive to the point. What was asked was that the judge should tell the jury the legal effect of their finding certain facts. Instead of this, he told them that they must find the facts from all the evidence in the case. This as a general instruction was quite right, but as an answer to the point, it was in no sense responsive, and wholly missed the subject to which (-he attention of the court was drawn. The fourth assignment of error is also sustained. The learned judge, in speaking of “ these surveys ” and the length [401] of time since they were made, said to the jury that “ it is not to be expected that the monuments then made on the ground are now to be found,” although the defendant’s case rested on the testimony of surveyors, who asserted that the trees originally marked, or some of them, were actually on the ground, had been examined by them, and bore the marks of tbe survey. The jury might naturally understand from this remark that the learned judge discredited the testimony of the defendant’s witnesses and regarded the alleged original marks as entitled to no consideration, and their judgment might have been controlled by what they understood to be tbe opinion of the judge. It may be that the defendant’s theory was not so supported as to convince the judge or the jury that it was the true one, but he had a right to have it passed upon by tbe jury under proper instructions. We regret to send this case back for a new trial, as tbe general charge seems to us correct and entirely fair, but as the errors complained of in the third and fourth assignments of error may have influenced the verdict we have no alternative. The judgment is therefore reversed, and a writ of venire facias de novo awarded.