Martz v. Hartley

The opinion of the Court was delivered by Huston, J. —I cannot concur with the opinion of the court as applied to the facts of this case, or as being true as the general law of this state. There is no survey of ordinary size, the lines of which will measure exactly to the corners, or to the place where they once stood : hence, every surveyor in tracing old surveys expects to find, and does find the length of every line differing more or less from his draft. In many parts of this state there is not one originally marked tree in each ten miles square. Is each tract to be re-measured carefully and all overplus to become vacant land ? The doctn'neof confining a man to the precise distance in his draft will not do: it will not do justice; it will not, in any case, give a man the land in his draft; and it would unsettle the extent of every old settled tract of land in the state. After the lapse of many years, line trees are not found ; and nobody, who knows any thing about it, expects to find them. Trees die as well as men—are liable to wind and fire—and, like men, are sometimes maliciously destroyed. The line as used, as established by consent, as designated by fences, seen and acknowledged by both parties—the admission of a fact, as (hat a corner stood ata particular spot, and proof that both parlies have admitted it for twenty-one years, is conclusive; so much so, that positive proof, the truth of which all admit, will not move a fence between’two fields, which their owners have admitted for twenty-one years to be the line between them. In the case in 9 Johns. Rep. each party claimed a straight line between two points, but the fence dividing the possession was crooked and stood so for twenty years : he who moved it and set it straight was decided to be a trespasser. The judge ought to have told the jury, that when the survey had been made for more than twenty-one years, and possession taken, and the division line had been agreed upon by the respective owners on each side, it was conclusive, as much so as if the line trees were all standing and the men who ran and marked them had been in court to prove it. Il had been supposed that titles to land had been nearly settled, and on principles satisfactory^ to all reasonable men : but the doctrine that where lines are not still standing, a man must, be confined to his strict measure, would set all afloat; and the oldest would be the [264] worst title, and continue to grow worse as a tree died, was blown down by the wind or dug up in the night. There is no such thing as finding a gore of four, five or ten acres between two surveys winch call for each other. When the latter calls for the former, and the course is the same, the line of the former is seldom retraced in making the latter. A survey which calls fora river or a creek, lias that for its boundary, though the courses on. the draft will not exactly follow it. One of the instructions to every deputy surveyor under the proprietary act was, that when two surveys were near to each other, he should lay them so as they should adjoin. The reason is obvious : long narrow strips bounded by old surveys, would not. be readily sold ; and the consequence was, that when a surveyor had made and returned one survey, and made another near to it, he made it. join the former by protraction ; that is, in his return he threw away a line he had run, and bounded his second survey on the one made before. The owner of the last survey can then hold the land on his side up to the line of the old survey ; but he has no right to go into it, stilL less after acknowledging ú by clearing up to it, and calling it his line for more than twenty-one years, has he a right, under pretence of doing justice to the commonwealth, to resurvey it, and. by strict measurement and calculation as to variations of the compass, to make a part of it vacant and take it up as such. A liit.le reflection will satisfy the acute mind of the judge who decided tin’s cause, that rules applicable to finding lines of surveys which were perfectly correct a few years after the survey was made, are totally misplaced after the lapse of half a century. The time is coming, and in some parts of (.lie state has come, where no original lines are to be found. How are we to ascertain our boundaries in such case1? Why, just as they are ascertained in incalculably the greatest part of the world. What a man has possessed long enough to'be protected by the statute of limitations he has a right to: the place in which he and his neighbour have said for twenty-one years liis line is, must continue to be the place where it is. There is no other doctrine on which titles can be safe; and nothing more destructive of title could be invented, than substituting theory about variation of the compass, instead of lines once seen and since acknowledged, till the trees and those who marked them are no more. Akin to this, and no belter, is the investigation whether a long line is perfectly straight, and paring and trimming a survey made in the wilderness in cold or wet, or under circumstances which occasioned hurry, by one through cleared land, made at leisure. When the survey was made (he title was agieeable to it, whether it was or was not accurate in all respects; and the owner had a right to his marked lines, and by his lines, though not. straight, and though it was a little longer or shorter than designated on the draft. When marks are all gone, a fence made and acknowledged by both parties for twenty-one years to be the line, is conclusive, and must be so, or no man is safe. Judgment reversed and a venire de novo awarded.