Passage v. McVeigh

Opinion of the court by the Chief Justice. The errors assigned in this cause are founded on a bill of exceptions. The only exception contained in the bill is, “ to all that part of the charge which stated that any of the-matters in controversy in regard to the lines or boundaries or location of the land in dispute were matters of law, and not left to the jury.” The ground of reversal, if any there be, must be found within that exception ; this court cannot look beyond it. Sitting as a court of law, this court reviews only errors of law, and such errors' only, committed upon the trial, as are within the bill of exceptions and the assignment of errors. The only error alleged to exist in the charge of the judge who tried the cause is in the following sentence: “ The first and second courses are charged to be old ones — the posts; and the plaintiff’s lot must be laid out from that one chain in the rear. This is matter of law.” The whole controversy is a question of boundary, depending upon the description contained in the plaintiff’s deed. The location of the lot depends upon the true position of the first course in the deed, which is described as follows: “Beginning at the northeast corner of the lot belonging to Mrs. Mary Hunter, thence south twenty-three degrees east, along the line of the lands of the said M. H. seven chains and thirty-five links, to the lands of the Rev. Ur. Samuel Miller.” The judge had very properly told the jury “that the plaintiff’s land lay along Mrs. Hunter’s tract up to Dr. Miller’s line. These are monuments controlling the course.” There can be no gore or space between the west line of the [735] plaintiff's lot and the east line of Mrs. Hunter's lot. The two lines are identical; and the question was, where is the true cast line of Mrs. Hunter’s land ? Is it on a line drawn between the two posts spoken of by the witnesses ? The counsel and the surveyor, who examined the lot prior to the making of the deed, “ considered ” that as the true line. In measuring the front and rear of the lot, they measured from those posts. The witnesses call these posts monuments, and they doubtless were the monuments used by them in making the measurements; but they are not monuments called for in the deed. The description in the deed calls for the line of the Hunter lot, and wherever that may be, there the line of the plaintiff’s lot must be also. Now there is no satisfactory evidence to show that those posts were in the Hunter line. It is admitted by the witnesses that no survey was made, aud no means adopted to determine the true line of the Hunter lot. The counsel says expressly that, as the parties were relatives, he was not precise in fixing it. The surveyor says “the posts were fixed, and supposed to be the corners of Mrs. Hunter.” But, he adds, “ we did not ascertain the corners from any old deeds. I surveyed no lines; 1 made no map.” Neither Mrs. Hunter nor the plaintiff were present when the lot was attempted to be located, and neither, therefore, can be bound by what the counsel and the surveyor thought or said respecting it. The only evidence that those posts are in the true line of the Hunter lot, is the fact stated by the surveyor, that the fence is an old fence, and stands where it always did. By “ always” the witness can only mean as long as he has known it. But whether be has known the fence five or teu, or twenty years, does not appear. If the fence be twenty years old, and there has been an adverse possession for that length of time, it may serve to determine the true line. But there is no satisfactory proof that the fence was sufficiently old to give title by possession. The position, then, of the fence or of the posts referred to by the witnesses settles nothing. The question still remains, where is the true last line of the Hunter lot? There are facts in the case which tend strongly to the conclusion that the line between the posts is not the true east line of the Hunter lot; but whether [736] this be so, or not, is a question of fact for the jury, not of law for the court. The judge erred in charging the jury that the posts or the old fence marked the true line of the lot. • It is not improbable that, upon the trial, it appeared satisfactorily that the posts were in the true line of the lot; but it does not so appear upon the case before this court. It is worthy of notice that this is not a mere question of damages. The defendant pleaded title. The issue is upon, a question of title, and the verdict settles that the plaintiff’s title covers the locus in quo. If the judgment stands, and the line of the Hunter lot should prove to have been erroneously located to the prejudice of the defendant below, she is remediless. The judgment should be -reversed, a venire de novo awarded, and the record remitted, to be proceeded in according to law. For reversal — The Chief Justice and Judges Elmer, Haines, Potts, Cornelison, Arrowsmith, Schenck, and Wills. For affirmance — The Chancellor, Valentine, and Ogden.