Keller v. Over

Opinion, Mb. Justice McCollum : When the evidence in this case was closed, the plaintiff’s right to recover depended on whether the land called for by his survey had been previously appropriated by the warrants under. which the defendants claimed. His survey lay between two lines of the proper age for the defendants’ surveys. If the eastern line was the defendants’ west line, the plaintiff was entitled to a verdict. If the defendants were right in holding to the western line, then the plaintiff had no land and no right to recover. This was a question of fact for the jury, to be determined on a consideration of all the evidence. The counsel [13] representing the parties to the issue submitted written points, which embodied all the law on the subject of location applicable to the case. The learned judge correctly answered these points, but in his general charge went beyond them, and introduced an element to which we are indebted for the presence of the case in this court. He told the jury, in substance, that there were two other rules to be observed by them in considering the question of location, and with respect to which neither party had asked instructions: First, that there was a conclusive presumption that a survey duly returned, and not questioned for more than twenty-one years, was actually made by the surveyor upon the ground; and, second, that after the lapse of twenty-one years there was a presumption that a survey so returned was actually made as returned or located, and that the latter increased in strength and weight as the years pass by. It is sufficient to say of the first that it had no application to this case, because both parties claimed by lines and corners marked upon the ground. As to the second, if there had been no marks on the ground on the west side of the defendants’ surveys, their west line could have been fixed by protraction from any known monument on any other line, by means of the legal presumption that the lines had been run as they were returned. But there were marks on the ground on the west side of the defendants’ surveys. In the presence of the marks on the ground, the line was to be located by the jury from them, and the doctrine of the legal presumption that the lines were run as returned had no place in the case. Presumptions are raised to supply the place of actual proofs; when the proofs are present, there is neither foundation nor room for the presumption: Grier v. Penna. Coal Co., 128 Pa. 79. The official return of the survey was evidence in the cause, and its correspondence with the marked line to which the defendants claimed on the west was a circumstance to be considered by the jury, and to which it was proper for the court to direct their attention. Aside from the introduction of the presumptions mentioned, and the use that was made of them in the charge, this case was well tried. But when the learned judge, whilst conceding that the marks upon the ground should govern in deciding the question of location, applied to it the presumption that the survey was made as returned, he did that which might, and naturally [14] would, mislead a jury. In various forms in the general charge, and with marked emphasis, he kept prominently before them the presumption he had voluntarily invoked, to aid them in solving the problem of location; and he dwelt on the age of the surve3rs as lending strength to the presumption, and increasing the probability, that the official return was correct. The natural tendency of this was to draw their attention from the work on the ground to the official return, from the best to the weakest evidence, and to subordinate the former to the latter. As we think the charge was misleading in this respect, we are constrained to reverse the judgment. Judgment reversed, and venire facias de novo awarded. Footnotes [*] And see, also, Holt’s App., 98 Pa. 26.