Morse v. Rollins

Opinion, Mr. Justice Sterrett : The only defence to this action of ejectment was, that the title to the strip of land in controversy passed by deed of August 25, 1875, from plaintiff below to Mrs. Amelia Allen, whose interest was subsequently acquired by defendant. The deed, according to the courses and distances given therein, embraces the land in controversy; but evidence was introduced by the plaintiff to prove that it was excluded by the survey made upon the ground and assented to by the parties at the time of the conveyance. The length of the line along the public road, north thirty-eight degrees and thirty minutes west, as given in the deed, is “ seven perches to a post.” According to the evidence, that line, as located on the ground, was three tenths less than seven perches, and the post called for at its terminus was. actually set there as a monument to mark and designate the northwesterly corner of the lot intended to be conveyed. On the line running thence south forty-three degrees and fifteen minutes west, the partition fence between vendor and vendee was built and afterwards maintained. The undisputed testimony of the surveyor and his assistants was, that they set the post at six and seven-tenths rods from the northeasterly corner of the lot as claimed by plaintiff below. If the jury found, as they doubtless did, that a survey was actually made on the ground, that the northwesterly corner of the lot was fixed and designated by a stake set in the ground for that purpose, and they were further satisfied that the location of that monument was at the point claimed by plaintiff, it was their duty to find in Ms favor. The evidence certainly warranted that conclusion; and, as was said in Lodge v. Barnett, 46 Pa. 477, no principle is better settled in this state than [543] that “the courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by proof of their former existence, when the marks or monuments are gone.” The case was well tried. The evidence presented questions of fact that were fairly submitted to the jury. We find nothing in either of the specifications of error that requires a reversal of the judgment. Judgment affirmed.