An assignment as error that the court below rejected certain
patents of land offered in evidence by the plaintiff is fatally
defective if the record does not contain copies of the patents.
In an action of ejectment in a circuit court of the United
States sitting in the Pennsylvania which involves a question
concerning the location of the boundary of a private estate, that
rule of evidence respecting the admission of declarations of
deceased persons touching the disputed boundary which is laid down
by the highest court of that state is the rule to govern the action
of the circuit court at the trial, and it is well settled in that
state that declarations of a deceased person touching the locality
of a boundary which was surveyed and located by him, which
declarations were made to the witness in, pointing out that
locality, are admissible in evidence.
Hunnicutt v. Peyton, 102 U. S. 333, and
Ellicott v.
Pearl, 10 Pet. 412, distinguished.
In Pennsylvania, original marks and living monuments are the
highest proof of the location of a survey; the calls for adjoining
surveys are the next most important evidence of it, and it is only
in the absence of both that corners and distances returned by the
surveyor to the land office determine it.
Surveys constituting a block are not treated in Pennsylvania as
separate and individual surveys, but are to be located together as
a block on one large tract, and if the lines and corners of the
block can be found, this fixes its location, as they belong to each
and every tract of the block as much as they do to the particular
tract which they adjoin.
When the location of a survey in Pennsylvania can be determined
by its own marks upon the ground or by its own calls, courses, and
distances, it cannot be changed or controlled by the marks or lines
of an adjoining junior survey; but when, by reason of the
disappearance of these
Page 125 U. S. 310
original landmarks from the senior survey, the location of a
line or the identity of a corner is uncertain and is drawn in
controversy, then original and well established marks found upon a
later survey, made by the same surveyor about the same time and
adjoining the one in dispute, are admissible -- not to contest or
control the matter -- but to elucidate it and thus aid the jury in
discovering the location of the senior survey.
After the lapse of twenty-one years from the return of a survey
in Pennsylvania, the presumption is that the warrant was located as
returned by the surveyor to the land office, and in the absence of
rebutting facts, the official courses and distances determine the
location of the tract; but this presumption is not conclusive, and
may be rebutted by proof of the existence of marked lines and
monuments and other facts tending to show that the actual location
on the ground was different from the official courses and
distances.
The Court stated the case as follows:
The plaintiff below, Packer, brought an action of ejectment to
recover from the defendant below, Clement, 120 acres of land
located in Mount Carmel Township, Northumberland County,
Pennsylvania. He claimed this 120 acres as part of a tract of land
surveyed in October, 1794, under a warrant dated 26th of November,
1793, issued in the name of William Elliott, the title to which was
in him, the plaintiff. On the trial, he adduced evidence showing
that this William Elliott tract was one of six tracts of a block of
surveys -- a term which, under the Pennsylvania land system, means
a series of surveys made by one surveyor at the same time upon
warrants issued upon the same day, owned by the same person,
dependent upon each other in succession, calling for each other,
and returned to the land office at the same time, and so located on
the ground that the tracts each adjoin the other side by side as a
body. In that state the warrant and survey thereon and the return
of the survey constituted the legal mode of acquiring lands from
the commonwealth. The block just mentioned was known as the "La
Fevre Block," and the tracts composing it were designated by the
names of the persons to whom they were warranted, as follows: The
Ebenezer Branham, Nathaniel Brown, Lewis Walker, William Shannon,
William Elliott, and the Joseph Tyson, all of which
Page 125 U. S. 311
were dated November 26, 1793, surveyed on the 21st and 22d days
of October, 1794, and returned into the land office by William
Gray, Deputy Surveyor, February 23, 1795.
The plaintiff claimed that the northern boundary of this tract
was identical with the southern line of the defendant's tracts, and
that such southern boundary was about 60 rods further north than
that claimed by the defendant, and down to which he was in actual
possession. The question in the case, as exhibited by the record,
is one of location, the burden of proof being on the plaintiff
below to show the location of the northern boundary of the William
Elliott tract, and that the 120 acres in dispute are within the
limits of that tract.
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 second 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 125 U. S. 312
image:a
Page 125 U. S. 313
image:b
Page 125 U. S. 314
within the limits of the William Elliott tract belonging to the
plaintiff 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 actually 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 southeast corner or
the Reynolds tract and the southwest 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 (southeast of the one and southwest of the other), in which
Rockefeller testifies that in surveying
Page 125 U. S. 315
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 southeast corner of the Reynolds and the
southwest 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's 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 boundary
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
Page 125 U. S. 316
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."
Page 125 U. S. 317
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 defendant 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 monuments
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.
Page 125 U. S. 318
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 southwest of the former and southeast 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
Page 125 U. S. 319
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 eleven 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 dividing 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
Page 125 U. S. 320
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.
MR. JUSTICE LAMAR, after stating the facts as above, delivered
the opinion of the Court.
The first assignment of error is to the effect that the court
below erred in rejecting the offer of the plaintiff in error of six
patents issued by the commonwealth to Peter Graul for the Joseph
Tyson, William Elliott, Lewis Walker, William Shannon, Nathaniel
Brown and Ebenezer Branham surveys, bearing date the 12th, 13th,
and 17th of April, 1797, respectively, for the purpose of locating,
and showing that the commonwealth confirmed the location of, said
surveys as a block, by granting patents to each one of them, and
for the purpose of showing how much land the commonwealth granted
in pursuance of these several surveys.
Objection by plaintiff below to this was sustained, and
exception taken. The plaintiff in error, however, has not embodied
copies of these patents in the record returned. The court is
therefore left uninformed as to the contents of the patents, or as
to their materiality. What effect might have been given to this
assignment of errors had evidence of the contents of the patents
mentioned been sent up with the record we need not consider in
disposing of this case. It is sufficient to say that this
assignment of error is fatally defective for the reason given
above, and it cannot be sustained.
The second specification relates to the rejection by the court
of a portion of the deposition of John Fisher, referred to in the
above statement. We gather from the brief of counsel
Page 125 U. S. 321
that the ground on which these declarations were ruled out was
that they were not within any of the exceptions to the general rule
that hearsay evidence is inadmissible to establish any specific
fact which in its nature is capable of being proved by the
testimony of a person who speaks from his own knowledge. In
The Mima Queen v.
Hepburn, 7 Cranch 290,
11 U. S. 296,
Chief Justice Marshall says:
"To this rule there are some exceptions which are said to be as
old as the rule itself. These are cases of pedigree, of
prescription, of custom, and in some cases of boundary. . . . Also
matters of general and public history."
Upon the subject of boundary there is a general agreement that
by the English rule, evidence of the declarations of deceased
persons as to the boundary of parishes, manors, and the like, which
are of public interest, is admissible, but that such evidence is
inadmissible for the purpose of proving the boundary of a private
estate unless such boundary is identical with another of public
interest. In many of the states, this strict rule has been extended
and these declarations have been admitted to prove the boundaries
of lands of private persons. This extension of the rule has, we
think, been sustained by the weight of authority in the American
state court as justified upon grounds as strong as those on which
the original rule rests. In
Boardman v. Lessees of
Reed, 6 Pet. 328,
31 U. S. 341,
Mr. Justice McLean states one of these grounds. He says:
"That boundaries may be proved by hearsay testimony is a rule
well settled, and the necessity or propriety of which is not now
questioned. Some difference of opinion may exist as to the
application of this rule, but there can be none as to its legal
force. Landmarks are frequently formed of perishable materials. . .
. By the improvement of the country and from other causes, they are
often destroyed. It is therefore important in many cases that
hearsay or reputation should be received to establish ancient
boundaries."
This was a case of private boundaries purely, and the
declarations were rejected not upon the ground of hearsay, but
because they were considered
Page 125 U. S. 322
as immaterial and not tending to elucidate any question before
the jury.
The limitations upon this extension of the original rule are
different in different states. We do not deem it necessary in the
present case to lay down any definite rule, applicable to all
cases, as to when declarations of deceased persons constitute valid
evidence to establish private boundaries.
The question is one involving the ownership of real property in
Pennsylvania, and it becomes our duty to ascertain the rule
established in that state, especially as respects the admissibility
of the declarations of deceased surveyors in cases of boundaries
between private estates. In the case of
Caufman v. Congregation
of Cedar Spring, 6 Binney 59, the plaintiff claimed a certain
number of acres which were surveyed by one Wilson, an assistant of
the deputy surveyor, since deceased. The deputy surveyor returned
to the land office a smaller quantity than was contained in
Wilson's actual survey. On the trial of the case, evidence of what
was said by Wilson was objected to by the defendant upon the ground
that the official return of the survey was the best evidence of the
survey. The evidence was held by the Supreme Court of Pennsylvania
to have been rightly received. Chief Justice Tilghman said:
"It will be recollected that Wilson is dead; otherwise nothing
less than his own oath could have been received. Where boundary is
the subject, what has been
said by a deceased person is
received as evidence. It forms an exception to the general rule. It
was necessary for the plaintiffs to show their possession of the
lands. . . . It was impossible for the plaintiffs to show the
extent of their possession without showing the lines run by Wilson.
Those lines were the plaintiffs' boundaries -- at least such was
their claim. It appears to me, therefore, that what was said by
Wilson came within the exception which admits the words of a
deceased person to be given in evidence in a matter of
boundary."
In
Kennedy v. Lubold, 88 Penn.St. 246, the declarations
of a deceased surveyor, made thirty-five years before the trial,
were allowed to go to the jury, but the court below, in
charging
Page 125 U. S. 323
the jury as to the nature and force of this evidence, used the
following language:
"There is evidence of what Herrington or some surveyor said when
he went to this tract corner. That is hearsay evidence, and we
admitted that with a good deal of reluctance. We hardly believe it
is evidence. We say to you, in determining that evidence, it is
weak evidence. It is not as strong evidence as that of witnesses
who come here upon the witness stand, and submit to
cross-examination in testifying to what is the true corner, from
the very necessity of the case."
The case being carried up by a writ of error to the Supreme
Court of Pennsylvania, Chief Justice Agnew delivered the opinion of
the court, and said:
"These two cases were argued together. They seem to have been
tried upon the doctrine of leaving first principles and going on to
perfection. But old surveys are not to be so tested. Most perfect
in the beginning, they are constantly undergoing change and decay,
until by wind, fire, rottenness, and the acts and frauds of men,
their evidences lie only in memory and hearsay. Hence, when the
learned judge said of the acts of the surveyors, who forty years
before went upon the ground, ran the lines, blocked the trees,
counted the growths, found original marks, and pronounced the
hickory the numbered corner of donation lot No. 1,260, it was mere
hearsay, he hardly believed it evidence, admitted it with
reluctance, and it was weak evidence in determining, he clearly
misled the jury. The reverse is true -- the evidence was strong,
and ought to prevail unless clearly rebutted by showing either a
mistake of the witness relating the facts, or error in the
surveyors making the declaration. . . . The declarations as to the
corners, when found, blocked, and counted, were a part of the
res gestae, and so far from being doubtful evidence, were
competent, and always admitted when the transaction is old and the
surveyor dead."
In
Kramer v. Goodlander, 98 Penn.St. 366, the witness
having testified that he had owned the land in dispute thirty years
before the trial, and employed one Ferguson, a surveyor since dead,
to trace the lines, it was offered to prove what Goodlander said as
to the lines while he was on the ground
Page 125 U. S. 324
searching for them. This was rejected as purely hearsay. Justice
Trunkey, delivering the opinion of the court, said:
"From an early day in this state, in litigation respecting
boundaries, it has been competent to prove, after the death of a
surveyor who had examined a line, what he said respecting it at the
time and on the ground. The offer should have been admitted."
In
McCausland v. Fleming, 63 Penn.St. 38, Justice
Agnew, delivering the opinion of the court, said:
"Pedigree and boundary are the excepted cases wherein reputation
and hearsay of
deceased persons are received as evidence.
The statements of deceased persons relative to boundaries of which
they spoke from actual personal knowledge have been frequently
received as evidence in this state."
There is one case in which the principles of this rule of
hearsay evidence in respect to boundaries were fully considered in
the circuit court of the United States.
Conn v. Penn, 1
Pet.C.C. 496. The opinion of the court was delivered by Mr. Justice
Washington, and the substance of it is as follows, p. 511: the
courses and distances laid down in a survey, especially if it be
ancient, are never in practice considered as conclusive, but are
liable to be materially changed by oral proof or other evidence
tending to prove that the documentary lines are those not actually
run. Reputed boundaries are often proved by the testimony of aged
witnesses, and the hearsay evidence of such witnesses has been
admitted to establish such lines, in opposition to the calls of an
ancient patent. It is not the lines reported, but the lines which
have been actually run by the surveyor, which vests in a patentee a
title to the area included within those lines.
These decisions clearly require the admission of the testimony
rejected by the court below, and the decisions cited by the counsel
for defendant in error also seem to us in harmony with the tenor
and effect of them.
The case of
Bender v. Pitzer, 27 Penn.St. 335, is an
interesting case in its examination of the qualifications and some
of the aspects of this rule. The declarations of a deceased
surveyor who had not made the original survey nor
Page 125 U. S. 325
subsequently examined it, nor run the lines upon the ground, and
who was not an adjoining owner and did not point out the lines at
the time of those declarations, were held to be rightfully
rejected. But Justice Knox, while rejecting the evidence, took
especial care to reiterate the principles laid down in the cases
heretofore cited. In delivering the opinion of the court, he
said:
"It has long since been settled both in this country and in
England that ancient boundaries are provable by general reputation
in a question involving public rights. In Pennsylvania, a still
greater latitude has been allowed in questions of boundary. Here,
the declarations of a deceased person touching the locality of
boundary between adjoining owners have been admitted where the
survey was made by the person making the declaration, or where the
declaration was made by an adjoining owner who pointed out the
boundary line between the tracts to the witness at the time the
declarations were made."
Caufman v. Congregation of Cedar Spring, 6 Binney 59;
Hamilton v. Menor, 2 S. & R. 70.
To sustain the rejection of the evidence, much reliance is
placed on the decisions of this Court in the cases of
Hunnicutt
v. Peyton, 102 U. S. 333, and
Ellicott v.
Pearl, 10 Pet. 412. But as the question is one of
Pennsylvania law, to be controlled by Pennsylvania decisions, the
observations of the Court in the cases cited are not pertinent.
The first of these cases states the English rule and summarizes
some of the results to be deduced from the decisions of the state
tribunals. The court concedes that had the Supreme Court of Texas
decided differently, it would have felt constrained to apply the
Texas rule to the case in question, but even under the summary of
the general law in this country as it was conceived to exist on the
subject at that time, the evidence rejected in the present case
ought to have been received. It is not necessary for us to approve
or disapprove the departures from the original rule, because the
Court held that the evidence there offered was not admissible under
any well established exceptions to the rule. The Court is
particular to say the declarations of Moore were made not when
Page 125 U. S. 326
he was pointing out the boundaries of the Basquez survey, but
when he was at a distance from the place of beginning of that
survey and from its upper line. That Moore had made the survey, or
had ever been upon its upper line, or on the upper line of the
reserve, was proved only by his assertion, which the court allowed
to be given in evidence. There was no such proof
aliunde.
The case of
Ellicott v. Pearl, supra, was brought to
this Court by a writ of error to the Circuit Court of the United
States for the District of Kentucky, and in the decision here, this
Court adhered to the English rule and rejected the evidence of the
declaration of a deceased surveyor as to the boundary of a private
estate. In so doing, this Court was simply enforcing the rule as it
existed in Kentucky at that time. In
Cherry v. Boyd,
Litt.Sel.Cas. 8, decided by the Supreme Court of that state in
1800, it was held that evidence of the parol declarations of a
surveyor concerning the marks or lines of a private estate were
inadmissible. This being the settled law of Kentucky, this Court
could not have decided otherwise than it did in
Ellicott v.
Pearl. But even in that case, the court uses the following
guarded language:
"The doctrine in America in respect to boundaries has gone
further, and has admitted of general reputation as to boundaries
between contiguous private estates."
The remaining assignments of error relate to the answers to the
requests by the counsel of the respective parties for instructions
to the jury, and to the general charge of the court below. They are
so many in number that it would greatly protract this opinion to
review them
seriatim and in the order of their
presentation.
At the request of the plaintiff, the court below said to the
jury
"that, in the absence of marks on the north made for the William
Elliott in 1794 by the deputy surveyor, the William Elliott must go
to its calls for adjoiners on the north; that as there is no
evidence of any such original marks, the William Elliott must go to
its northern calls for the Daniel Reese, Mary Myers, Charlotte
Ruston, and John Reynolds, and therefore the William Elliott will
embrace the land in dispute
Page 125 U. S. 327
by locating the Mary Myers and Charlotte Ruston according to the
official courses and distances from their northern line, or from
the Rockefeller maple corner."
We think the learned judge, in giving this charge, fell into
error. If it was not a positive and imperative direction to the
jury to find for the plaintiff, it would be difficult to convince
them that this was not the manifest intention of the court. In its
logical effect, it is a syllogism the conclusion of which is that
the land in dispute is within the limits of the William Elliott,
and belongs therefore to the plaintiff. Its terms are
first that in the absence of any original marks on the
north of the William Elliott made by the surveyor at the date of
the survey, the William Elliott will go to its northern adjoining
tracts, to-wit, the Mary Myers and Charlotte Ruston;
second, that there is no evidence of any such original
marks on the north of the William Elliott;
third, that
therefore the William Elliott must go to its adjoining tracts on
the north (the Myers and Ruston), and thus embrace the land in
dispute. The direct tendency, if not the avowed purpose, of the
statements contained in this charge is to withdraw from the
consideration of the jury a very considerable amount of pertinent
and important testimony for the defense. It should be borne in mind
that the William Elliott is not a single separate tract, but one of
a block of several tracts, surveyed at the same time, by the same
surveyor, under warrants of the same date, and for the same owner,
and returned into the land office as one body.
By the settled law of Pennsylvania applicable to the location of
surveys, original marks and living monuments on the ground
constitute the survey, and they are the highest proof of its true
location. The next most important evidence of location is the calls
for adjoining surveys, and in the absence of both of them, and then
only, the lines according to courses and distances, returned by the
surveyor into the land office, determine the location. But it is
equally well settled by an unbroken current of decisions in that
state that the surveys constituting a block are not to be treated
as separate and individual surveys; nor can each tract be located,
independently
Page 125 U. S. 328
of the rest, by its own individual lines or calls or courses and
distances, but such surveys are to be located together, as a block
or one large tract. If lines and corners made for such a block of
surveys can be found upon the ground, this fixes the location of
the block, even to the disregard of the call for adjoiners. The
lines and corners found upon any part of the block of surveys
belong to each and every tract of the block, as much as they do to
the particular tract which they adjoin.
In
Pruner v. Brisbin, the question came before the
court below, and the principles just laid down were enunciated in
that court, and upon a writ of error to the Supreme Court of
Pennsylvania, Mr. Justice Sterrett said:
"The thirteen tracts, having been surveyed in a block and so
returned, must be located upon the ground as a block; neither of
them can be arbitrarily located, in disregard of the lines and
corners found upon other parts of the block. All the lines and
corners marked upon the ground and returned must be considered in
ascertaining the proper location of the block. Those found upon any
part of the block belong to each and every tract of which it is
composed, and if sufficient lines and corners can be found they
determine the location of the entire block, without regard to its
calls for adjoiners or for waters, if such calls conflict with the
lines actually run upon the ground and returned."
He added: "It requires neither argument nor citation of
authority to show that the learned judge was clearly right in thus
instructing the jury." 98 Penn.St. 210.
In
Fritz v. Brandon, 78 Penn.St. 351, Chief Justice
Agnew says:
"When one person is owner of all the warrants, they may be
surveyed together in a single block by exterior lines, leaving the
interior lines to be settled by the owner himself.
Mock v.
Astley, 13 S. & R. 382;
Stevens v. Hughes, 3 W.
& S. 465;
Collins v. Barclay, 7 Penn.St. 73;
Hagerty v. Mathers, 31 Penn.St. 348. The legal effect is
that the entire block is viewed as one tract. Hence, Chief Justice
Lewis said, in
Hole v. Rittenhouse, 25 Penn.St. 491:"
"Under these circumstances, it is evident that the whole fifteen
surveys adjoining each other in a single block without interior
lines, all made at one time and owned
Page 125 U. S. 329
by the same party, were essentially but one tract. . . ."
"This principle was in the mind of Chief Justice Woodward when
he said, in
Malone v. Sallada, 48 Penn.St. 425: 'And when
we are dealing with blocks of surveys, we must remember that the
marks on any part of the block belong to each tract in the block.'
So Judge Strong said, in
Darrah v. Bryant, 56 Penn.St. 75:
'And if they were surveyed as a block, they must be located as a
block.'"
In
Malone v. Sallada, 48 Penn.St. 419, Chief Justice
Woodward says:
"Located by these adjoiners, Isaac Miller would take the land in
dispute, but several of its courses and distances, and the
configuration of the survey as returned into the land office, would
essentially be changed. Notwithstanding these consequences,
however, the defendants insisted upon its location by its calls.
The plaintiffs, on the other hand, contended that the whole block
of twenty-five surveys should be located by the marks on the
ground, with no other reference to calls for adjoiners than such as
would be consistent with the marks on the ground, and that it is
immaterial that no marks are found on the Miller survey, since
authentic marks are found on other tracts of the block sufficient
to locate the whole block, and that these marks apply with decisive
effect to Isaac Miller. They deny also that Merrick Starr was
called for on the west of Isaac Miller; but, if it was, they say it
was a mistake, and must be rejected in favor of the courses and
distances as returned. In a word, the plaintiffs would locate the
Isaac Miller by the marks on the ground of other tracts, in
connection with which it was surveyed and returned. . . . And when
we are dealing with blocks of surveys, we must remember that the
marks on any part of the block belong to each tract of the block.
Interior lines were never run, and marks are not to be looked for
on them; but if marks are found upon the ground to establish an
interior line of a particular tract of the block, and we find other
tracts returned with that same line, we are to presume it was
adopted as the boundary of these tracts, no less than of the tracts
which bear the marks. When the surveyor, for instance, ran from
the
Page 125 U. S. 330
pine corner of Gilbert and Brooks to the stone corner of Lomison
and Paul, his course for more than three hundred perches was south,
ten degrees east, and his only other course for 89 perches was
south, 4 1/2� east, and these two courses carried him the
whole width of the Gilbert and Miller tracts, and formed the
western boundary of these respective tracts. No marks are found on
these lines, but the pine and stones are sufficient to locate
them."
In
Northumberland Coal Co. v. Clement, 95 Penn.St. 126,
it was held:
"When original surveys have been made and returned as a block
into the land office, the location of each tract therein may be
proved by proving the location of the block. In ascertaining the
location of a tract, the inquiry is not where a tract should or
might have been located, but where it actually was located. Every
mark on the ground tending to show the location of any tract in the
block is some evidence of the location of the whole block, and
therefore of each tract therein."
We think these authorities are conclusive upon this point. The
principle itself was invoked by the defendant in error and by the
judge below, when at the request of the former, the judge charged
the jury that if the actual position upon the ground of one single
maple corner could be established, this would fix the southern line
of the whole block of eleven surveys and of every member of the
block. If, therefore, any original marks could be found called for
and established on the northern line of any tract of the La Fevre
block, that would fix the northern line of the whole block of six
surveys.
It was conceded by the plaintiff and defendant below, and stated
by the learned judge in his charge to the jury, that the William
Elliott was a member of the La Fevre block, of which the Ebenezer
Branham was the leading warrant and controlling survey.
A. B. Cochran, a surveyor produced by the plaintiff below as a
witness in his own behalf, testified that the "post
Page 125 U. S. 331
by a pine," called for by the Ebenezer Branham as a monument on
its northern line, was a well recognized mark on that line, and
that he found three other trees on that line west of the "post by a
pine" in the line of official courses, for 150 perches. And there
were not less than five suveyors, who, as witnesses produced by the
defendant, testified that they found five or six trees on the
northern line of the Ebenezer Branham, in the official courses of
the same line. These marks, if the jury believed the witnesses,
must be regarded, according to the authorities, marks and monuments
sufficient, if not overcome by the force of rebutting evidence, to
fix the entire northern line of the La Fevre block and of each
tract composing it, including the William Elliott. For these
reasons, we consider that the inevitable effect of that portion of
the charge in question was to mislead the jury.
In regard to the Francis West and Richard Martin tracts, the
location of which the defendant below offered in evidence for the
purpose of showing that the southern line of the Brush Valley block
was run at the time of the original survey and marked upon the
ground far enough south of the official courses and distances to
include the land in dispute, the court charged the jury in these
words:
"The Richard Martin, being a junior survey, cannot control or
enlarge the dimensions of the Samuel Lobdil and other members of
the Brush Valley block, which are earlier surveys."
"The location of a junior warrant may throw some light upon the
location of a senior survey which it calls to adjoin. Hence, what
the deputy surveyor did in locating the Richard Martin has been
admitted in evidence, and may be considered by the jury in
connection with all the other evidence in determining the question
whether or not the chestnut oak and the gums relied on by the
defendant are trees marked by the surveyors in 1793 to define the
southern line for the Brush Valley Block; but should the jury find
that none of those trees was marked for the survey of 1793, then
the Richard Martin can have no weight in determining the location
of the Brush Valley block, but the eleven surveys of that block
must then be located from their fixed corners upon the northern
line according to the official courses and distances (unless,
indeed, the jury should find in favor of David Rockefeller's
location of the maple corner). "
Page 125 U. S. 332
We cannot concur with this charge as a correct application of
the general law of the State of Pennsylvania to the facts of this
case. It is unquestionably true that a junior survey cannot control
or enlarge the dimensions of a senior survey. We understand this to
mean that when the location of a survey is or can be ascertained
and determined by its own marks upon the ground -- its own calls
and courses and distances -- it cannot be changed or controlled or
enlarged or diminished by the marks or lines of an adjoining junior
survey; but when, from the disappearance of these original
landmarks, caused by time and other agencies, from the senior
survey, the location of a particular line, or the identity of a
corner, is left in uncertainty or becomes the subject of
controversy, then the original and well established marks found
upon a latter survey made by the same surveyor about the same time
and adjoining the one in dispute are regarded as legitimate
evidence -- not to contest or control, but to elucidate, throw
light upon, and thus aid the jury in discovering, the exact
location of the older survey. In stating to the jury that such
marks on the junior survey (the Richard Martin) might be considered
in determining the single question whether or not the chestnut oak
and gums relied on by the defendant were marked by the surveyors in
1793 to define the line for the Brush Valley block, "and that no
weight can be attached to the Richard Martin" if the jury find that
none of these trees was so marked, the judge committed error. In
restricting the operation of this evidence to this one single
question to the exclusion of all other questions connected with the
location of the southern boundary of the Brush Valley block, we are
of the opinion that he was in direct conflict with the rule laid
down by the Pennsylvania courts.
In
Clement v. Northumberland Coal Co., 87 Penn.St. 291,
this very question came up as to the effect of the "post by a pine"
and the pitch-pine upon the southern line of the Richard Martin in
fixing the southern line of the Mary Myers. The court below allowed
this evidence to go to the jury to be considered in determining the
southern line of the Mary Myers. The supreme court affirmed the
well established rule that
Page 125 U. S. 333
marks upon an adjoining junior survey cannot control or enlarge
the dimensions of an earlier survey (even though the junior survey
adopts the lines of the older), but that such marks may be
submitted to the jury as evidence tending to discover the actual
location of the older survey. The court said:
"The point, though made in the oral argument against the
instruction of the learned court below, we think, is without a
sufficient foundation in the charge. The judge very correctly held
that a subsequent survey could not control the lines of a former,
but he did not leave the case upon this single instruction, by
omitting to inform the jury that the subsequent acts of the deputy
surveyor in locating a junior warrant, and the marks left by him on
the ground, might be considered as evidence tending to disprove the
actual location of the older survey. On the contrary, he answered
the third point of the plaintiff below, which raised the question
very plainly, so as to bring the true distinction fairly before the
minds of the jury. The point is clear, and he replied:"
"Marks found upon adjoining surveys made about the time of the
survey are evidence upon the subject of location, but they cannot
control or enlarge the dimensions of an earlier survey, even though
they may adopt its lines."
"Thus the jury was left to locate the earlier survey by those
marks, if they should conclude that they indicated the true place
of the earlier location, and were at the same time informed that
the lines of a later survey cannot alter or enlarge the lines of a
former survey, although the courses and distances of these former
lines may be adopted. Certainly this was a fair instruction, and
brought the charge within the precedents cited. The difference
between that which is evidence of a fact and an effect which
controls the fact is plain. Then, when the judge came to state the
evidence of the marks found, he most distinctly referred to the
pitch-pine on the southern line of the Martin tract, and the 'post
by a pine,' as the material matter in determining the question as
to the southern boundary of Mary Myers. In the next paragraph, he
refers to his answers to the points, and leaves the question of the
boundary, as indicated by those marks, to the jury. P. 294. "
Page 125 U. S. 334
The phraseology employed in this opinion of the court seems to
have been adopted for the special purpose of excluding, by
anticipation, the qualification added to the rule in the general
charge of the court below. The case just cited says that the marks
("post by a pine" and the pitch-pine) on the Martin line were
rightly submitted to the jury as material matter in determining the
question of the southern boundary of the Mary Myers. But the
learned judge below in this case said that the Richard Martin can
have no weight in determining the location of the Brush Valley
block, and therefore of the Mary Myers, unless the jury finds that
certain trees relied on by the defendant bore certain marks.
In the case of
Northumberland Coal Co. v Clement, 95
Penn.St. 126, the Supreme Court of Pennsylvania passed upon this
same question as to the effect of marks upon the southern line of
the Richard Martin (which marks were "post by a pine" and the
pitch-pine), as evidence to fix the location of the line that
divides the Billington tract from the Walker tract, defining the
southern limit of the former and the northern limit of the latter.
The court said:
"The official survey of the Thomas Billington calls for a small
maple as its southwest corner. Maple sprouts are found at the place
claimed by the defendant in error to be the southwest corner of the
tract. The original surveys of all these tracts were made by Henry
Donnel, acting as a deputy surveyor. It is shown that the same
Donnel, in 1814, in running the northern line of the Lewis Walker
tract, fixed the line between it and the Thomas Billington to be
where it is now claimed by the defendant in error. The official
survey of the Richard Martin calls for a white pine tree in its
south line. That tree is standing and identified. That warrant was
located by the same surveyor, and the return of survey was made
three days before the survey of the Billington tract was returned.
It calls for the Samuel Lobdil on the west, and the line between
the tracts is of the same length in each survey. He had the
warrants in his hands at the same time. The location of the latter
throws light on the former. The location claimed by the defendant
in error for the Billington is not only in harmony
Page 125 U. S. 335
with the block of surveys of which it forms a part, but also
with the location of the Richard Martin made by the same surveyor
soon thereafter."
The counsel for the plaintiff below, in their able brief, say
that there are some errors of fact in that case which detract very
much from it as an authority. We do not discover in it any material
errors of fact, but it is hardly necessary to consider the
suggestion in view of the general concurrence of authorities in the
principle therein laid down.
See Pennsylvania Canal Co. v.
Kunkel, 33 Leg.Int. 339.
See also Sweigart v.
Richards, 8 Penn.St. 436;
Bellas v. Cleaver, 40
Penn.St. 260.
Counsel for defendant in error say in their brief:
"This admitted principle of evidence that the call of the
younger was some evidence upon the subject of boundaries upon the
location of the older, when both were indicated by the same deputy
surveyor, never did have much weight in our court."
We see nothing in the cases cited and especially relied on to
sustain this assertion, but much to confirm the authority of the
rule. The brief cites
Pruner v. Brisbin, 98 Penn.St. 203,
and says:
"The attempt was made, as was done in the present case, to avoid
the conclusiveness of the official return of survey by the calls of
a junior survey, and to locate the older surveys by such junior
calls."
This is not an exact statement of the issue in the case. It is
just the reverse. The attempt was made to avoid the conclusiveness
of
the original marks of a survey upon the ground by the
calls of its own leading warrant and by the calls of a junior
survey. In that case, there were original marks sufficient to
establish the line of the older survey that was in dispute, and the
only contest about that line arose, not from the absence of
original marks upon it, but from the marks and calls of junior
surveys, and also the marks of older surveys. The court decided
that
"the jury was properly instructed that the block of 1793, as
returned to the land office,
must be located by its own marks,
and not by calls of later surveys, or by marks found upon the
ground younger than 1793."
The construction put by counsel upon this language would bring
the decision of the court into direct conflict with its own holding
made at the same term and reported in the same volume.
Page 125 U. S. 336
The learned counsel for the defendant in error argue with great
force and ingenuity that the rule is firmly established as the law
of Pennsylvania that after a survey has been returned into the land
office for the period of twenty-one years unchallenged by any
adverse claimants in the mode required by law, it is a conclusive
presumption that the survey was actually made and marked upon the
ground as shown by the official return. After a careful examination
of the decisions of the supreme court cited by counsel, and some
others relating to the subject, we are convinced that they are all
in harmony with the conclusions herein announced. After the lapse
of twenty-one years from the return of a survey, the presumption is
that the warrant was located as returned by the surveyor to the
land office, and, in the absence of rebutting facts, the official
courses and distances determine the location of the tract
warranted. But this presumption is not conclusive, and is rebutted
by proof of the existence of marked lines and monuments, and other
facts tending to show that the actual location on the ground was
different from the official courses and distances. Where younger
surveys of fixed lines called for the older, the fact is
admissible, in the language of the authorities, "to aid the jury in
discovering the actual location of the survey."
There are other assignments of error by the counsel for
plaintiff in error, but inasmuch as they involve somewhat the
principles of the points already passed upon, we do not deem it
necessary to consider them further.
The judgment of the circuit court is reversed and the case
remanded with directions to grant a new trial.
