Lessee of Lilly v. Kitzmiller

The court, in their charge to the jury, after' summing up the title of the plaintiff and defendant to the lands in question, said in substance as follows: — The lands in dispute lie four miles north of the boundary line between the states of Pennsylvania and Maryland. Independent of the proprietaries’ agreements, Lord Baltimore could have no right to grant lands beyond the limits of his province. Whatever, however, was granted by either proprietor, though beyond their respective limits, before the royal order of 1738, was secured to the settlers by their mutual agreement. But the subsequent agreement of 1760 could not affect the rights of persons claiming under either proprietor pre*vious ^00 thereto. The great question in this cause is, whether L the first survey included £he lands now possessed by George Kitzmiller, the defendant. It appears to us there is a failure in the plaintiff’s title in this early stage of it. Under the practice in Pennsylvania of making proprietary surveys, trees are marked on the ground, and where there are no trees or natural boundaries, artificial marks are set up to distinguish the survey. By these means, if the surveyor return a draft different from the courses and distances actually run, the mistake is easily corrected. Should the surveyor commit an error in his return, it shall not affect the rights of the party. Such cases have frequently happened. But the case is very different under the ancient practice of making surveys under the proprietaries of Maryland. Such surveys were merely ideal, and precisely fixed on paper alone. No trees were marked except the beginning boundary. Lord Baltimore’s instructions of 1712 to his agent, Mr. Carrol, which have been read, clearly shew us what his intentions were, and that he was concluded only by the courses and [33] distances returned. The survey was ambulatory — not confined to a certain spot of land, but was governed by the variation of the compass, and was continually shifting. The courses and distances returned formed the survey, and determined on an exact admeasurement the particular lands granted, as often as they were run. Those courses and distances alone were binding on the proprietor, and consequent v on his patentee. It necessarily follows under our idea, that as the testimony of Hannah Owings, or any other circumstances shewn in this cause, cannot establish a title to lands without the limits of the original survey as returned, that the plaintiff must fail in the present suit. Cited in 14 Pa., 64, to support the proposition that courses and distances run on the ground are the true survey. Messrs. Randolph, Eewis, Hartley, and Smith pro quer. Messrs. Bradford, J. Smith, and Bowie pro def. We mean, however, in thus giving our opinion, which we have taken some pains to form, to confine ourselves to the express case before us. It is not intended to affect other rights. Persons who have bought lauds from Messrs. Digges, even within the re-survey, may have acquired titles by their possessions and improvements, which should not now be shaken. The jury retired from the bar early on Sunday morning, and soon agreed on their verdict, but the plaintiff took a nonsuit.