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"(4) If the jury find that the Mitchell war on the ground of the John Nicholson warrant, under the date of March 19, 1889, and rant, as claimed by the plaintiff. the return of survey made thereunder, were "The presumption is that Mageehan merelocated upon the lands surveyed under the ly returned to the land office a copy of the John Nicholson warrant of August 8, 1793, survey, out of the book, made by Woods, wliich survey was accepted by the common but he states in his return that it was exwealth September 15, 1847, and if the jury amined by him and found correct. Now, of further find tbat the plaintiff is the suc course, if it were proven as an absolute cessor in title to John Nicholson under his fact in this case, that Mageehan made a sursaid warrant, their verdict should be for the vey on the ground, and it differed from that plaintiff for the land described in the writ." made by Woods, the Woods survey would Not answered.

prevail. He would have no authority to Defendant presented these points:

change the survey made by Woods. He "(6) The record of the return of survey of would only have authority to report to the John Nicholson tract, of August 8, 1793, land office what survey was made by Woods. shows that George Woods, and he alone, "But the land office has accepted the remade the survey in 1793. The tract must turn of the survey made by Woods, in the be located by evidence of marks of such sur handwriting of Mageehan, in which he states vey in 1793, and, failing in such evidence, that he examined it and found it correct; and then it must be located by adjoiners. An we feel that if there was absolute proof here swer. Affirmed."

that Mageehan had marked a line on the "(8) The jury must not consider the evi ground on the date when he says he examindence of J. Murray Africa as to the Cad ed this, and marked it as shown on the draft wallader Evans tract being a John Musser introduced in evidence, that while it is not tract, as his evidence is based upon his evidence in itself alone, and could not be, recollection of the contents of papers which if there was nothing else in the case, of the were not produced, and is therefore incompe true location of this, yet, if it throws any tent. Answer. Affirmed.

light on the location made by Woods orig“(9) Where, as in this case, it appears inally, then it is evidence in this case, and from the return of survey that the surveyor, not otherwise. in locating the tract, went upon the ground “Now, independent of any bearing that and made the survey, calls for streams and this survey, alleged to have been made by other natural monuments are of great weight Mageehan, has upon the question as to in determining the location of the tract. whether or not Woods made such a survey, Answer. Affirmed.”

it is valueless as evidence, for the reason, if The court charged, in part, as follows: he was not going over the ground that George

"You will have nothing to do with any Woods went over, then his survey is valuething in this case, except to determine this less. He had no authority to make other one question, if you can: Where did George lines. He had no authority to make new Woods survey this piece of land in 1793? lines. The plaintiff's title must rest upon the In other words, did he survey the land where survey made by George Woods. the plaintiff in this case claims he did; that "We simply instruct you that your duty is, as shown on his map by the red lines? is, from the evidence in the case, to follow If he did not survey and locate that piece the footsteps, if you can, of George Woods, of land where the plaintiff claims he did, in 1793, and see whether or not he located this as shown on that map by the red lines, then, land as claimed by the plaintiff. If you find, of course, the plaintiff has nothing to do from the weight of the evidence, that he did, with the land covered by that survey, and under our instructions as to' the way in claimed by the defendant, and cannot re which you shall apply that evidence, then cover. The only questions of law in the render a verdict for the plaintiff. If you case are those which we shall give you to find that he did not locate it there, and it guide you in your deliberations in determin. matters not where else he may have located ing that question,--as to where George | it, then your verdict would be for the deWoods did locate this tract of land.

fendant." "It very frequently occurs, as in the past, Argued before McCOLLUM, C. J., and -not so much now, since land titles have MITCHELL, DEAN, FELL, BROWN, MESbeen better settled,—that these controversies TREZAT, and POTTER, JJ. arise between two persons, each of whom

Geo. A. Jenks, W. Horace Rose, and Chas. owns warrants, surveys, and patents out of

Corbet, for appellant. P. J. Little, S. M. the commonwealth, and it is claimed one in

Jack, D. B. Taylor, Alvin Evans, J. W. terferes with the other, that one is laid partially on top of the other; and certain rules

Leech, John E. Evans, Mathiot Reade, and

M. D. Kittell, for appellee. have been laid down, and, mainly, the rules that have been laid down are in relation to cases of that kind. There are two warrants, DEAN, J. Plaintiff brought ejectment to surveys, and patents here that interfere, but recover from defendant possession of about these rules do not apply in this case, because 307 acres and 112 perches of land in Sumit is a question here of the actual location merhill township, Cambria county, warrant

ed in the name of John Nicholson, August stantial change was made, prescribing his 8, 1793. The warrant was put into the hands duties in the particulars noticed. In 1804, as of George Wood, at that time deputy sur before noticed, the territory for which this veyor for Bedford county, within whose ter warrant called became part of Cambria ritory the vacant land described in the war county, and Woods' official book of warrants rant was at that time situated. He made and surveys went into the hands of James survey of the land to satisfy the warrant, Mageehan, deputy Surveyor for Cambria and entered the plot or draft of his survey county. Still, for years no return was made in a survey book kept by authority of law of the Nicholson survey, but in 1847 Mageefor that purpose in his office. Cambria coun han returned it into the land office, with this ty was organized in 1804, and its territory certificate appended to the plot: "Situate on included that part of Bedford county in one of the South branches of the Conemaugh, which this land lay. The records, includ Summerhill township, Cambria county and ing this survey of the deputy surveyor of surveys joins, in pursuance of a warrant Bedford, so far as they affected the land in granted to John Nicholson dated the 8th of the new county, went into the hands of the August, 1793, surveyed by George Woods, deputy surveyor of Cambria. This book con deputy surveyor of Bedford county, in 1793, taining copies of the surveys was not a mere in pursuance of said warrant and examined private memorandum of the surveyor. It | by me the 10th day of July, 1842, and found was much more than that. It was a book correct. James Mageehan, D. S. of Cambria which the law directed him to keep,-there- County.” Unquestionably, this was a lawful fore was a public and official record. The return of Woods' survey by his successor act of 1785 (2 Smith's Laws, p. 319) directs having authority as to this part of the terri*that every deputy surveyor who shall re tory theretofore Bedford county. Up to the ceive any such warrant, shall make fair and date of it, no intervening right had been asclean entries of all warrants put into his serted. If the land was vacant in 1793, it hands in a book provided by him for that continued vacant, as to all persons except purpose." Section 9 of the same act directs Nicholson or those claiming under him, down how the warrant shall be executed: “By to 1847. It should be noted here that ceractually going upon and measuring off the tain proceedings had been had with referland and marking the lines to be returned ence to this land between 1793 and 1847. upon such warrant." And it was further di The commonwealth claimed an indebtedness rected that such surveys should be returned from Nicholson. Proceedings were had uninto the land office by the deputy surveyor, der the act of 1807 to adjust and fix the in“as soon as conveniently may be after such debtedness and make sale of his lands. To survey shall be made upon the payment or that end, commissioners were appointed, tender of the fees to which such deputy sur who certified they had on March 11, 1808, veyor shall be legally entitled for his serv made sale of his lands,-among others, this ices therein." It is then provided that if tract warranted August 8, 1793, to Edward the survey be not made before December Brien and Robert Coleman for the sum of 31st, in the year the warrant came to hand, $891.94,—and that the purchasers had given and returned into the land office before the bond, with security, conditioned for the paylast day of March in the next year, it shall ment of the purchase money to the commonbe void as to future surveys of the same wealth. Afterwards, both purchasers having land returned before any return of the first died, the widow and heirs of Coleman .consurvey. Then follow heavy penalties on the veyed all their interest in the land to Dorodeputy for veglect of duty, and a formal offi thea Brien, widow and sole heir of Edward cial oath to perform his duty with impartial- Brien, and she paid the full amount of the ity and fidelity. The warrant was applied bond to the commonwealth. In considerafor by John Nicholson on August 3, 1793, and tion, the commonwealth, under its seal on issued to George Woods, the deputy surveyor January 24, 1843, conveyed to her the Nichof Bedford county, August 8, 1793. It was olson tract, here in dispute. Under the law duly entered by him in his book, as well as and usage of the land office, the owner of the a plot of the survey made by him in pursu Nicholson warrant had no right to claim the ance of the warrant. A mere glance at this issue of a patent, for his survey had not plot shows that Woods, in substance, asserts been returned, nor had the purchase money that it was made upon the ground. The been paid; but the commonwealth, treating corners are indicated by trees of different him as the equitable owner, sold the land species, and adjoiners on three sides are for his debt, accepted the full purchase monmarked. Why the survey was not returned, ey from the purchaser, and delivered to his does not appear from any of the records in widow a deed therefor; then, four years aftevidence. Whether the deputy was not paid er, accepted Mageehan's return of the Woods or tendered his fees which the warrantee survey. These are, in substance, the mawas bound to pay before return, or for some terial facts of the case. reason other than neglect, can now be only If the result of the issue depended on the a matter of conjecture. There was subse exact date of plaintiff's inception of title, quent legislation in 1792, 1793, and 1794 in as between him and defendant, it might bereference to deputy surveyors, but no sub come important to inquire just wbat title

Nicholson had acquired by his warrant and tifies he first went on the ground, having survey before the return of Mageehan, which with him a copy of the original survey in

, Yeates, 87,-and like old cases. But here to 1842, ran east 218 perches on line marked defendant claims no title prior to 1889, more 1842. He then ran north from the birch and than 40 years after Mageehan's return. The found a well-marked line of 1812 and along commonwealth then grants the land to de the eastern line of the Nicholson found fendant's grantor, Robert Mitchell. Was the marks of 1842. He also testified to other land still hers to convey? That depends on marks of that year. William P. Mitchell, whether it had been appropriated before un a surveyor of long experience, testifies to der the Woods survey, either in 1793, or by the same effect. Neither their credibility Mageehan's verification and return in 1847 nor their capability is questioned. Some on the Nicholson warrant. It seems to be one in 1842 ran and re-marked the lines of conceded that Woods' marks, if he had made 1793. It is highly probable that at that date, them on the ground, have now disappeared. 50 years after they were made, not all the At the time of the trial the survey had been marks made by Woods had been obliterated, made 107 years before; but, leaving out of and Mageehan could follow with reasonable view for the present the survey of 1793, certainty his footsteps. The early survey. what about the return of Mageehan in 1847? ors made but few monuments on the ground, In his certificate he does not say he resur compared with the later ones, and were very veyed the tract or remarked its lines, but inexact in their measurements. This land he says it was surveyed by Woods in 1793, was then worth only 20 cents an acre, and and “exa mined by me the 10th day of July, they were not particular. Therefore, from 1842, and found correct.” The learned judge the certificate itself, and the evidence tendseems to have assumed that Mageehan's sole ing to show the lines of 1842, we think the duty was to copy Woods' survey from his evidence was very significant that Woods book, and return it to the land office, and in 1793 actually ran this survey on the that it is improbable he went upon the ground. Mageehan followed him in 1842, ground. We do not think the facts warrant and, from his own observations on the such inference. If, as argued, the words ground, verified the correctness of Woods' "examined by me and found correct” mean plot. Consequently, from his own examina. only that he examined the plot or plan of tion, he certified to its correctness. survey in the book, and that he found it The learned judge of the court below correct, it may well be asked, how could seems to have tried the case throughout on he find a survey correct by a mere examina a wrong theory; that is, that 107 years after tion of the book? That showed nothing but the Nicholson survey the plaintiff must lothe warrant and plot. Whether correct or cate his land by visible marks on the ground; incorrect, there was in the book no means failing in that, he must locate it by adjoinof ascertaining. Mageehan's duty was pre ers; that he could not locate the survey cisely what Woods' would have been, had by evidence clearly tending to show that it the land remained undetached from Bedford had been located by marks on the ground; county, and Woods had survived and held and that if they had disappeared, and after office in 1842. He would have then known this lapse of time there was no living witness that for nearly 50 years the survey had re who could testify he had ever seen them, mained in his office, not returned. Whether then, such being the case, he, in effect, held the land, or any part of it, had been ap that plaintiff must prove the location by adpropriated under later warrants, he could joiners. This second kind of evidence was not tell. He might have been familiar with somewhat doubtful. Two of the adjoiners other and adjoining surveys in that region. marked on the plot were pretty clearly provIt would have been not only his right, but The others, if not mistakes, were at his duty, as a conscientious public officer, least doubtful. Woods may have been wholto again go upon the ground and re-examine ly mistaken as to the warrantee of several the survey, not for the purpose of changing of the adjoining tracts, or the warrantee its location, but for the purpose of ascer name of them may have been changed in the taining whether junior rights had, in this surveys, but he could not have been mislapse of time, intervened, which affected the taken as to what he did on his own survey. old survey. If any had, it was his duty The result was to confine the attention of the to note them in his return to the land office. Jury to the one method of proof,—that by What it would have been Woods' duty to adjoiners,—the evidence bearing on which do, was just as plainly that of Mageehan. was conflicting and doubtful. This, in effect, Our inference from the wording of the cer made the plaintiff's case turn on its weakest tificate is that he examined the survey on point. The appearance of the map, with its the ground, and found the map of it correct. four distinctly named corners, the certificate It needed verification, which could only be of Mageehan, his apparent work on the had by going upon the ground, and this, ground to verify Woods' plot or map, were in all probability, he did. And this view is very significant facts pointing to an actual corroborated by the testimony of Africa and location on the ground in 1793 by Woods, Mitchell, experienced surveyors. Africa tes and the jury should have been so instructed.

en.

It would be impossible to locate many, per this explanation: "We have already instructhaps a majority, of the older surveys, by ed you to this effect, with the additional inthe rigid rule of evidence adopted here. structions as to the weight you must give Nearly all the lands described in our old to the evidence regarding the line alleged to acts of assembly as "within the limits of have been run in 1842.” In the general charge the late purchase from the Indians,” or as the learned judge says: “The warrant is to lands lying east of Allegheny river and Cone be located according to the survey made by wago creek,” were, when warranted, un Woods. If you do not find any marks on the broken forest. A very large part was tak ground, and we do not here, you must locate en up by tracts and blocks, and the surveys it by adjoiners. But the land office has acindicated by but few marks on the ground. cepted the return of survey made by Woods Many of these marks, sometimes all of them, in the handwriting of Mageehan, in which he are obliterated by time, the elements, or the states he examined it and found it correct; hand of man, so that it is, after the lapse and we feel that if there was absolute proof of more than a century, impossible to locate here that Mageehan bad marked a line upon them by marks on the ground to-day visible; the ground at the date when he says he exbut it is possible to prove by unbroken recog amined it, and marked it as shown in the nition of their boundaries through genera draft introduced in evidence, that while it is tions their original location. As the years not evidence in itself alone, and could not be pass, and the dates of the original monu if there was nothing else in the case of the ments become still more remote, not a ves true location of this, yet, if it throws any tige of them will remain, so that the next light on the location made by Woods origbest evidence of where the original marks inally, then it is evidence in this case, and were when made is proof of where they not otherwise.” This explanation, when conwere recognized to be while still in exist sidered in connection with the affirmation of ence. This testimony is, in effect, that of a the point, wholly fails to give any proper sworn officer, as to the 1793 location on the significance to the fact adverted to. The ground, by his own marks on the boundaries return, with the certificate, followed by the verifying the map. It is the strongest kind evidence of Africa and Mitchell, if they were of evidence as to the original location by believed, tended strongly to establish a fact Woods.

which, if established, was of itself sufficient A very brief glance at the undisputed facts to warrant a verdict that Woods had made here shows the grievous weight of the bur and marked his survey on the ground. It den placed upon the plaintiff at the trial. more than threw light on the location by The deputy surveyor of the commonwealth Woods. It proved it. The learned judge not was bound by his official oath to go upon only belittles the evidence, but wholly neuthe ground and execute this warrant. He tralizes the effect it was entitled to with the in substance, by his plot recorded in his book, jury. If the weight of the evidence estab. says he did go upon the ground, measure lished the fact of location in 1793, then the land, and mark the corners. Fifty years Ormsby v. Ihmsen, 34 Pa. 462, squarely rules afterwards, his successor verifies his work, the case in favor of plaintiff. The return and makes return of the survey, although made by Mageehan in 1847 remained unother vacant land was taken up all around challenged for 42 years,-just twice 21 years. the region about that time, and subsequently In the case cited we said, as to the presumpno one attempts to appropriate this tract. tion of the correctness of a return into the Ninety-six years afterwards, defendant's pred land office after 21 years: “It is more than ecessor in title, Mitchell, covers it with a mere probability. It is presumptio juris another warrant and survey, alleging it to et de jure,-a legal conclusion. The marks be vacant. On his nominal possession he which it is the duty of the surveyor to make stands, and says to plaintiff: “Prove your on the ground cannot be permanent. Posts title by showing marks on the ground made and stones may be removed, either accident107 years ago, or prove that your surveyor ally or by design; trees may be cut down, or made no mistakes in naming his adjoiners. decay; the progress of cultivation and imTrue, my title is only ten years old, but I provement tends to obliterate them; and, can point to marked trees of that age, and just in proportion as the land increases in locate my survey by visible marks on the value, do the evidences of title furnished by ground. Therefore my title must prevail." the surveyor's marks disappear. Where

What we have said, in effect, sustains ap lands have been improved, it would seem pellant's fifth assignment of error,

more reasonable to expect that no traces of The defendant's sixth written prayer for the surveyor's lines should be found after instructions was as follows: "The record of twenty-one years, than the any should rethe return of survey of the John Nicholson main. Titles would be insecure, indeed, if tract of August 8, 1793, shows that George after such a period the absence of visible Woods, and he alone, made the survey of marks were held sufficient to invalidate a 1793. The tract must be located by evidence returned survey. Time also removes living of marks of such survey in 1793; and, fail witnesses; the surveyor and his assistants ing in such evidence, then it must be located may die; and necessarily, therefore, resort by adjoiners.” This point was affirmed, with must be bad to the return itself, as evidence

54 A. 3

furnished by the officer of the law of what are Glass v. Gilbert, 58 Pa. 266, 292, and he has done." While the language in Ormsby Mock v. Astley, 13 Serg. & R. 382. v. Ibmsen would seem to indicate that after What we have said, in substance, sustains 21 years the return is absolutely conclusive, appellant's eighth, tenth, eleventh, twelfth, both as to the facts of location on the ground and thirteenth assignments. The others, exand its boundaries, this has been explained cept the first and second, become unimin subsequent rulings. In Malone et al. v. portant on a retrial. Sallada et al., 48 Pa. 419, Justice Agnew, in As to the first and second, they have as his concurring opinion, says it (Ormsby V. their foundation the rejection, as evidence, Ihmsen) does not change the law as there of a deed offered by the plaintiff. As before tofore held, but merely furnishes us with the noticed, Nicholson had become indebted to elements of an additional rule; "that is, the commonwealth for lands purchased by where, from the return of the survey itself, him. He had formerly been controller genwe can discover that the call for an adjoiner eral of the state, and was one of the promis a mistake, even thougn no line can be inent land speculators of that day, and a found upon the ground corresponding to the large purchaser of land from the commonline in the return, the call may be controlled wealth by warrant and survey; was also a by the line as returned, and the other evi large debtor to her. By special act of March dences of location contradictory to the call." | 31, 1806, Nicholson being then dead, the govIn Packer v. Schrader Mining, etc., Co., 97 ernor was empowered to appoint three comPa. 379, the case, on its facts, was held to be missioners to ascertain, settle, and adjust the ruled by Ormsby v. Ihmsen, in these words: amount of his indebtedness, and ascertain “The regularity of the survey being thus the quantity and quality of his lands in each legally fixed and absolute, it but remains for county subject to lien for unpaid purchase a jury to determine whether, upon the money to the commonwealth.

For this purground, such lines, adjoiners, or other marks pose they were given access to the land ofcan be found, as will, to a reasonable certain. fice, with the right to inspect all necessary ty, determine the location of plaintiff's papers. As a supplement to this act, that claim.” It was held in this case that the of March 19, 1807, was passed, authorizing only question was, was there a corner or line the commissioners to make public sale of found on the ground, which was a corner or Nicholson's lands after due notice in a newsline of this tract in dispute? If so, the paper printed in the county, or nearest to question was solved, for the survey must it, and in Philadelphia, and make report to then be made by the courses and distances the governor. He appointed Heister, Evans, in the return. To the same effect are Grier and Lyon commissioners, who afterwards v. Penna. Coal Co., 128 Pa. 79, 18 Atl. 79, reported that they had on March 11, 1808, at and Bushey v. South Mountain Mining & Sowers Tavern, in the borough of Lancaster, Iron Co., 136 Pa. 541, 20 Atl. 549. In the after due notice, sold, among other tracts, last case it is held that "the rule that after one on the head waters of the Little Conethe lapse of twenty-one years the law pre maugh, between Allegheny Hill and Conesumes that a survey regularly returned was maugh Old Town, held by John Nicholson made as returned, cannot locate a survey under warrant of August 8, 1793, containing until some monument of it can be found 439 acres and 112 perches, to Edward Brien upon the ground. If one or more such marks and Robert Coleman, and that the commisbe found, the law will locate the survey by sioners had taken bond, with good security, the aid of legal presumption." It follows, for the payment of the purchase money for then, that while the rule in Ormsby V. all the land sold that day ($891.94) to the Ihmsen would not authorize Mageehan to go same purchasers. Between that date and into the woods In 1842 and run the courses January 4, 1813, both Brien and Coleman and distances of Woods' plot, and then re having died, the widow and heirs of Coleturn it into the land office, yet, if he found man conveyed all their interest in the land a single one of Woods' marks, he could, to Dorothea Brien, widow and sole heir of from that mark, by courses and distances, Edward Brien. She paid and had satisfied run the survey on the ground, and return it in full the bond given by Coleman and her into the land office. That return, unquestion- ! husband to the commonwealth. The comed for 21 years, would be conclusive as to monwealth then conveyed to her on Janthe location of the Nicholson warrant. uary 24, 1843, among other lands, all the Where, as here, the defendant denies that estate of Nicholson in the tract warranted either Woods or Mageehan was upon the August 8, 1793,—the land in dispute. The ground, the return would only be prima deed is signed, “A. V. Parsons, Secretary of facie evidence in plaintiff's favor, but, as the Commonwealth," with the great seal of we have before noticed, the decided weight the commonwealth affixed. On June 8, 1844, of the evidence shows that Mageehan did go this deed, without acknowledgment, was upon the ground in 1812, found marks of duly recorded in the office for the recording Woods sufficient to identify the location, and of deeds in Cambria county. Afterwards then re-ran the lines of Woods, and made Dorothea Brien sold and conveyed this tract return thereof in 1847. To the same effect to one McKenzie, and from him, by a reg.

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