Robeson v. Gibbons

The opinion of the court was delivered by Huston, J. — The plaintiffs here were plaintiffs below, and showed a warrant in 1773, and another in 1774; also a survey on Mmerick’s warrant, (the one in question,) returned into the surveyor general’s office in 1774, and a patent. ' They also proved that the lines of the survey in question were oh the ground, agreeably to the return of survey, or at least three of them, and that the defendant was residing within those.lines. The defendant showed a warrant in 1809, founded on an improvement in 1802, a survey in 1809, and a patent in 1812. Much testimony was given as to the defendant’s improvement: whether his original improvement was within the plaintiffs’ survey; whether it had been duly followed up; when and how he got into possession where his present’ [48] house iá. All this was matter to be decided by the jury. Several points of law were proposed by the counsel, on which the court were requested to give opinions, and opinions were given.. We do not see any error in these, on giving the opinions-a fair construction, except the third.- It has happened in this case, as in,many others, that the propositions.submitted to the court are not expressed in the most definite manner, and it is not certain that the court- understood some, of them in exactly the same manner that he- who wrote them,did. ' . . - . It is usual and .proper fór a deputy surveyor to note on, his draft of return of survey the names of the older-surveys which the one- then returned adjoins. The deputy in this case was an excellent and accurate officer. In the draft of the defendant’s survey, he notes on the outside of- on'e line, that it adjoins D. Emerick,. (the plaintiffs* warrant,) and' by dotted -lines shows what he supposed to be the length of Emerick’s line, which the defendant adjoined, an.d the course of the other lines of Emerick, running off 'from that -line. The- defendant having- insisted on these marks on his own survey,- designating, as he supposed, .the plaintiffs* claim, the court were asked- to charge the jury, as to-whether this draft of the defendant’s, and what was written on it, were evidence,'or, strong evidence, that the plaintiffs’ survey-was not made as represented by the return, under seal, and as the lines are proved to be on the ground. The answer does not meet the point; in fact, there is no answer. It is not supposed that a deputy surveyor, in executing a survey, runs all 'the lines of former surveys which it adjoins: he ought to have all the drafts of former surveys in hi's hands, but this is not always the case; he knows those lines which he adjoins in the survey he is 'making, or somebody shows them to him, a'nd be generally takes care not to interfere with prior surveys. The names and- notes on the draft he returns are evidence .of how he understood the matter at the time; but, a little reflection will satisfy any person that these are only of use to show the relative situation of the survey then making. In this case, the plaintiffs’ survey was made and returned in 1774; their title depended then, and depends now, on what was done at that time; their right, and the extent of that right, were then established; and no act of any individual or officer in 1809, can in the slightest degree affect it. Whether Mr. Eomul ran, or did not run the lines of Emerick,' in 1809; whether he had a correct or incorrect draft of Emerick’s survey; or whether the lines of .that,survey were shown him erroneously by the defendant, or by some other person; nay, whether he executed the defendant’s survey in part on ground within Emerick’s by mistake,-or by design, is. wholly immaterial. No act of the defendant’s, or of a deputy surveyor,- can divest the .right as before established; it cannot be taken away from the owner except by the operation of the statute of limitations, or by the owner’s sale of it. [49] ■ These notes hr memorandums on a draft-are often used as illustration, as proof of location; or where a draft is lost, as secondary evidence; and, where two surveys are made,, at the same time, by the same surveyor, and some mistake in the drafts as returned, may avail, as to title; but, that the memorandums on a. survey made in 1S09, should control, or in any way affect a survey in 1774, returned and patented, and the lines of which are still found on the ground, is out of the question. They did not weigh a feather — they ought not to have been regarded by the jury, and so the court should have told them. The answer to the last point is rather loose.' The true answer was, that William Bonham, not bringing suit sooner, was no bar to the plaintiffs’ recovery. The time prescribed by the statute of limitations is a bar. I would adhere to that strictly! and neither relax nor enlarge for favourable or hard cases; it is a matter of positive enactment, and neither ■ courts nor -juries' can disregard it, without forgetting or disregarding their duty. There was another point made in this cause, as to the nature and effect of a connected draft from the surveyor general’s office under the seal of that offibe. -The case, Vickroy v. Shelley, 14 Serg. & Rawle, 372, settles this point, and to that I refer. Judgment reversed, and a venire facias de novo awarded.