Clement v. Packer

The plaintiff below produced evidence showing that the tracts claimed and possessed by the defendant lying directly north of the William Elliott tract were known as the 'Mary Myers and Charlotte Ruston Tracts,' and were two of a block of eleven tracts, surveyed under warrants, all dated June 11, 1793, granted in the name of Daniel Reese, Charlotte Ruston, Mary Myers, John Reynolds, Thomas Billington, Mary Ruston, Thomas Ruston, Mary Ruston, Jr., John Young, Joshua Bean, and Samuel Lobdil, surveyed on the 2d and 3d of October, 1793, and returned to the land-office by William Gray, deputy surveyor, as one block, on the 3d of March, 1794; and that these eleven tracts of land (which were known as the 'Brush Valley Block') extended along the Le Fevre block on the north, and were specially named in the official returns of the surveys of the latter as adjoining on the north. He contended that the northern line of the William Elliott tract was identical with the southern line of the Charlotte Ruston and Mary Myers tracts; that his right, therefore, extended as far north as the southern line described in the official returns of those tracts; and that the true mode of ascertaining such southern line was to run out the lines of said tracts according to courses, distances, and calls, in the official returns of the original surveys. He showed by the returns and by the evidence of surveyors that the southern line thus located by official courses, distances, and calls would leave the land in dispute outside of the defendant's tracts, and therefore Page 313 within the limits of the William Elliott tract belonging to the plaini ff below. He produced A. B. Cochran, a surveyor, who in the winter of 1881 and the spring of 1882 had made an examination of the Brush Valley land in connection with that of the La Fevre block. This witness testified that he found the northern boundary of the Brush Valley block well defined by marks still existing on the ground made at the time of the original survey in 1793, and many of the living corners (trees) standing in the places designated in the official return; and that the lines of the different tracts corresponded pretty nearly with the official courses and distances, 'sometimes a little bit long, and sometimes a little bit short,' in one instance as many as 18 rods difference. He stated, very positively, that along the entire southern side of the block there were no marks upon the ground; no living corners, except one hereafter noted; no indication of any work whatever by the deputy surveyor in 1793; and that the official returns of the survey called only for posts for corners, with the exception just mentioned, which fact he stated was regarded by surveyors as evidence that the line had never been actually located on the ground, but simply protracted on paper. He stated further that there were no division lines acually run between any of the tracts of this Brush Valley block, except one, and that line was between the John Reynolds and the Thomas Billington tracts, which he stated was well marked upon the ground to a stone heap, which very nearly corresponded by course and distance with the corner called for in the official return of the surveys of these two tracts, and designated therein as a small maple tree, at the south-east corner or the Reynolds tract, and the south-west corner of the Billington tract. This stone heap had been made as a mark in 1847, and located as the maple corner thus called for, by David Rockefeller, a surveyor, since deceased. The deposition of David Rockefeller, taken on a former trial, was then read in evidence to show the location of this small maple tree called for as the common corner of the Reynolds and Billington tracts, (south-east of the one and south-west of the other,) in which Rockefeller testifies that in surveying these lands in 1847 he found the line between these two tracts (the Reynolds and the Billington) well defined upon the ground by marks made at the time of the original survey in 1793, and that he found in running from the northern corner, according to the official courses, at the end of the official distance, a small maple stump and maple sprouts growing around it, and a small maple tree lying on the ground, the trunk of which was burned entirely away for six or seven feet, so that no surveyor's mark could be found upon it. The testimony of Cochran and others was to the same effect, and they all gave it as their opinion that this was the true location of the maple tree called for as the common corner of the Reynolds and Billington tracts. He also showed, by the testimony of these and other witnesses, that if this maple stump was the true location of the maple tree called for as the south-east corner of the Reynolds and the south-west of the Billington, it would establish the southern line of the whole Brush Valley block; and by running it east and west from that point, according to the courses and distances, the land in controversy would be outside of the Mary Myers and Charlotte Ruston tracts owned by the defendant below, and within the limits of the Elliott tract belonging to the plaintiff below.

The plaintiff below further contended that in case the maple stump, which he claimed to have proved to be the maple tree called for in the official return, was not proved to be such corner, then the whole southern boundary was protracted on paper without any actual survey being done upon the ground; and, in the absence of any marks whereby such southern boundary could be definitely fixed, the true mode of ascertaining its location, as determined by the deputy surveyor in 1793, was to start from the well-marked boud ary on the north, and run out the lines according to the official courses and distances.

In reply, the defendant contended that the true mode of ascertaining the lines of a survey was to run them according to the marks and monuments on the ground made by the surveyor at the time of the survey, along with the lines and distances of the official return, when these latter corresponded with such marks and monuments upon the ground; but, in case of a conflict or variance, the original marks and monuments were to prevail and determine the location of the survey. He denied that the southern line of the Brush Valley block had been platted on paper, and alleged, on the contrary, that it was run at the time of the original survey, and marked upon the ground far enough south of the line contended for by the plaintiff to include the 120 acres in dispute within the limits of the Charlotte Ruston and Mary Myers tracts. He introduced M. B. Trescott and several other surveyors, who testified that the point located by Rockefeller as the maple tree corner called for at the end of the Reynolds and Billington dividing line was several perches north of the official distance, and several perches outside of the official courses. He had read from the deposition of Rockefeller, already offered by the plaintiff, the statement that he (Rockefeller) had been county surveyor of Northumberland county for 16 or 18 years, and that he knew from the official papers in his hands, during that period, that one Henry Donnel was, at the time these surveys were made, a regular deputy surveyor of William Gray, and that his (Donnel's) district embraced all this side of the river, including the Shamokin and Mount Carmel coal regions, where the surveys are that are involved in this controversy. To show the true location of the maple at the common corner of the Reynolds and Billington tracts to be 60 rods south of where Rockefeller had claimed to locate it, he offered in evidence the deposition of John Fisher, deceased, taken in several cases pending in the common pleas court of Northumberland county, between the plaintiff in error and the Northumberland Coal Company in 1878, it having been admitted that John Fisher was dead. This deposition was offered to prove by John Fisher that, in 1815, Henry Donnel was surveying the Brush Valley lines, and he (Fisher) was with him as chain-carrier; that when they were running the line between the Billington and Reynolds tracts, and were at a point about 60 rods south of the stump located by Rockefeller at a swamp, they found a stone corner, 'stones piled up.' Donnel said: 'This is the corner; here is where we located these warrants 21 or 22 years ago.' The plaintiff below objected to the admission of these declarations of Henry Donnel. The court sustained the objections, and rejected those portions of the deposition embraced in brackets, and sealed the bill of exceptions at the instance of the defendant. The portions rejected are as follows: Donnel said: ['While there at the corner, 21 or 22 years ago, we located these warrants.' When we got to the corner, Mr. Donnel said: 'Here is the corner,' pointing to it.] [All Donnel said was: 'This is the corner; here is where we located these warrants 21 or 22 years ago.' This was when we were running the line between the Billington and Reynolds. Donnel said it was the line. I knew it was the line.] And again: [At the time Henry Donnel said he located these warrants, 21 or 22 years ago, he was surveying the Brush Valley lands,-I mean the Ira Clement lands.]

The defendant also introduced several surveyors who testified to the fact of original marks east of and in a direct line with the point at which he claimed the maple stood, and also to two other line trees bearing the marks of the survey of 1793, showing that the southern boundary of the Brush Valley lands is form 30 to 60 rods below that contended for by the plaintiff below. In confirmation of this being the true location of the line in question, the defed ant below showed from the evidence elicited on cross-examination of a witness for the plaintiff, and also by numerous surveyors who appeared as witnesses for the defendant, that the Ebenezer Branham (which was the extreme eastern and controlling warrant of the La Fevre block) had still existing on its northern boundary authentic and original marks and mounments made at the time of the survey, and answering to the official calls thereof; nearly all of whom testified that these marks thus defining the northern boundary of the Ebenezer Barnham tract were sufficient to establish the entire northern boundary of the La Fevre block, which northern boundary they stated would be identical with the southern line of the Brush Valley block located as claimed by the defendant. To give additional support to his theory of constructing the dividing line in question he put in evidence the location of two surveys outside of the Brush Valley block, made by the same surveyor about the same time, whose established lines and corners he proposed to show were in perfect harmony with the location of the Brush Valley block contended for by the defense. It appeared in evidence that the first of these surveys was warranted to one Francis West, surveyed on the 10th day of September, 1793, located east and within a mile of the Brush Valley block, and that its lines, boundaries, corners, and calls were established by original undisputed monuments on the ground. It was also proved that the other tract was warranted to one Richard Martin, and surveyed on the 23d day of February, 1794, and called to adjoin the Francis West on the east and the Samuel Lobdil on the west; this last being the extreme eastern tract of the Brush Valley block. It also appeared in evidence that the eastern line of the Lobdil and the western of the Martin were reported by the return to be of the same length. The surveyors hereinbefore referred to as witnesses for the plaintiff state that the Francis West and the Richard Martin have a common corner, the south-west of the former, and south-east of the latter; that this corner is also called for as a mark on the northern line of the Ebenezer Branham, as above noted; that, starting from this recognized corner, called for by the three surveys, (the Francis West, the Richard Martin, and the Ebenezer Branham,) and following the southern line of the Richard Martin, (which is also the northern line of the Edernezer Branham tract, and which all the surveyors, on both sides, testify is marked by monuments, counting back to 1793, for a distance of 150 perches,) in its official courses and distances, it intersects the common line between the Lobdil and Martin tracts extended 32 perches south of its official length; that at this point of intersection there is a well-established corner common to the Martin and Lobdil tracts; that if the southern line of the Brush Valley block was run, starting from this southeast corner of the Lobdil tract, according to the official courses and distances, it would be carried actually upon the line claimed by the defendant below, indicated by the marked line trees and monuments, and strike the point at which he claimed the maple corner was located in the edge of the swamp, and therefore would place the land in controversy without the Elliot tract, and within the Charlotte Ruston and Mary Myers surveys.

He also introduced evidence to show that the 11 surveys of the Brush Valley block and the Richard Martin survey were all in the hands of the deputy surveyor at the same time, and that the deputy returned the Richard Martin into the land-office before the return of the Brush Valley lands, stating that its western line was 320 rods in length; and three days after returned the Samuel Lobdil, giving it the same course and length of line. These witnesses expressed the opinion, from their experience as surveyors, that the northern line of the Richard Martin was run on the ground at the same time as the Brush Valley block of surveys; that the dividn g line between the Brush Valley block and the La Fevre block of surveys should be located from the work done by the same deputy surveyor on the adjoining surveys; and that these monuments pointed out the line run by the deputy surveyor in 1793. The defendant below therefore contended that what the surveyor did, in locating the Richard Martin and the Francis West surveys, should be considered with all the other evidence in the case in determining the question whether the southern line of the Brush Valley block was actually run upon the ground or not, and, if so, where it was run.

The plaintiff below offered rebutting testimony tending to show that the trees relied on by the defendant below, as line trees and original monuments of the survey in 1793, bore no such marks, and that no such monuments for the southern boundary of the Brush Valley block could be found, or ever existed on the ground. He contended also that the Martin, being a junior survey to that of the Brush Valley block, could not be used for the purpose of locating the southern line of the latter.

Numerous exceptions were taken during the trial, and exceptions were also taken to the charge of the court. The jury returned a verdict for the plaintiff below, upon which judgment was rendered. The defendant below then sued out this writ of error.

S. P. Wolverton and Franklin B. Gowen, for plaintiff in error.

J. W. Ryon and James Ryon, for defendant in error.

Mr. Justice LAMAR, after stating the facts as above, delivered the opinion of the court.