"(4) If the jury find that the Mitchell warrant, under the date of March 19, 1889, and the return of survey made thereunder, were located upon the lands surveyed under the John Nicholson warrant of August 8, 1793, which survey was accepted by the commonwealth September 15, 1847, and if the jury further find that the plaintiff is the successor in title to John Nicholson under his said warrant, their verdict should be for the plaintiff for the land described in the writ." Not answered.

Defendant presented these points:

"(6) The record of the return of survey of John Nicholson tract, of August 8, 1793, shows that George Woods, and he alone, made the survey in 1793. The tract must be located by evidence of marks of such survey in 1793, and, failing in such evidence, then it must be located by adjoiners. Answer. Affirmed."

"(8) The jury must not consider the evidence of J. Murray Africa as to the Cadwallader Evans tract being a John Musser tract, as his evidence is based upon his recollection of the contents of papers which were not produced, and is therefore incompetent. Answer. Affirmed.

"(9) Where, as in this case, it appears from the return of survey that the surveyor, in locating the tract, went upon the ground and made the survey, calls for streams and other natural monuments are of great weight in determining the location of the tract. Answer. Affirmed."

The court charged, in part, as follows: "You will have nothing to do with anything in this case, except to determine this one question, if you can: Where did George Woods survey this piece of land in 1793? In other words, did he survey the land where the plaintiff in this case claims he did; that is, as shown on his map by the red lines? If he did not survey and locate that piece of land where the plaintiff claims he did, as shown on that map by the red lines, then, of course, the plaintiff has nothing to do with the land covered by that survey, and claimed by the defendant, and cannot recover. The only questions of law in the case are those which we shall give you to guide you in your deliberations in determining that question,--as to where George Woods did locate this tract of land.

"It very frequently occurs, as in the past, -not so much now, since land titles have been better settled,-that these controversies arise between two persons, each of whom owns warrants, surveys, and patents out of the commonwealth, and it is claimed one interferes with the other, that one is laid partially on top of the other; and certain rules 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, surveys, and patents here that interfere, but these rules do not apply in this case, because it is a question here of the actual location

on the ground of the John Nicholson warrant, as claimed by the plaintiff.

"The presumption is that Mageehan merely returned to the land office a copy of the survey, out of the book, made by Woods, but he states in his return that it was examined by him and found correct. Now, of course, if it were proven as an absolute fact in this case, that Mageehan made a survey on the ground, and it differed from that made by Woods, the Woods survey would prevail. He would have no authority to change the survey made by Woods. He would only have authority to report to the land office what survey was made by Woods.

"But the land office has accepted the return of the survey made by Woods, in the handwriting of Mageehan, in which he states that he examined it and found it correct; and we feel that if there was absolute proof here that Mageehan had marked a line on the ground on the date when he says he examined this, and marked it as shown on the draft introduced in evidence, that while it is not evidence in itself alone, and could not be, if there was nothing else in the case, of the true location of this, yet, if it throws any light on the location made by Woods originally, then it is evidence in this case, and not otherwise.

"Now, independent of any bearing that this survey, alleged to have been made by Mageehan, has upon the question as to whether or not Woods made such a survey, it is valueless as evidence, for the reason, if he was not going over the ground that George Woods went over, then his survey is valueless. He had no authority to make other lines. He had no authority to make new lines. The plaintiff's title must rest upon the survey made by George Woods.

"We simply instruct you that your duty is, from the evidence in the case, to follow the footsteps, if you can, of George Woods, in 1793, and see whether or not he located this land as claimed by the plaintiff. If you find, from the weight of the evidence, that he did, under our instructions as to the way in which you shall apply that evidence, then render a verdict for the plaintiff. If you find that he did not locate it there, and it matters not where else he may have located it, then your verdict would be for the defendant."

Argued before MCCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Geo. A. Jenks, W. Horace Rose, and Chas. Corbet, for appellant. P. J. Little, S. M. Jack, D. B. Taylor, Alvin Evans, J. W. Leech, John E. Evans, Mathiot Reade, and M. D. Kittell, for appellee.

DEAN, J. Plaintiff brought ejectment to recover from defendant possession of about 307 acres and 112 perches of land in Summerhill township, Cambria county, warrant

ed in the name of John Nicholson, August 8, 1793. The warrant was put into the hands of George Wood, at that time deputy surveyor for Bedford county, within whose territory the vacant land described in the warrant was at that time situated. He made survey of the land to satisfy the warrant, and entered the plot or draft of his survey in a survey book kept by authority of law for that purpose in his office. Cambria county was organized in 1804, and its territory included that part of Bedford county in which this land lay. The records, including this survey of the deputy surveyor of Bedford, so far as they affected the land in the new county, went into the hands of the deputy surveyor of Cambria. This book containing copies of the surveys was not a mere private memorandum of the surveyor. It was much more than that. It was a book which the law directed him to keep,-therefore was a public and official record. The act of 1785 (2 Smith's Laws, p. 319) directs "that every deputy surveyor who shall receive any such warrant, shall make fair and clean entries of all warrants put into his hands in a book provided by him for that purpose." Section 9 of the same act directs how the warrant shall be executed: "By actually going upon and measuring off the land and marking the lines to be returned upon such warrant." And it was further directed that such surveys should be returned into the land office by the deputy surveyor, "as soon as conveniently may be after such survey shall be made upon the payment or tender of the fees to which such deputy surveyor shall be legally entitled for his services therein." It is then provided that if the survey be not made before December 31st, in the year the warrant came to hand, and returned into the land office before the last day of March in the next year, it shall be void as to future surveys of the same land returned before any return of the first survey. Then follow heavy penalties on the deputy for neglect of duty, and a formal official oath to perform his duty with impartiality and fidelity. The warrant was applied for by John Nicholson on August 3, 1793, and issued to George Woods, the deputy surveyor of Bedford county, August 8, 1793. It was duly entered by him in his book, as well as a plot of the survey made by him in pursuance of the warrant. A mere glance at this plot shows that Woods, in substance, asserts that it was made upon the ground. The corners are indicated by trees of different species, and adjoiners on three sides are marked. Why the survey was not returned, does not appear from any of the records in evidence. Whether the deputy was not paid or tendered his fees which the warrantee was bound to pay before return, or for some reason other than neglect, can now be only a matter of conjecture. There was subsequent legislation in 1792, 1793, and 1794 in reference to deputy surveyors, but no sub

stantial change was made, prescribing his duties in the particulars noticed. In 1804, as before noticed, the territory for which this warrant called became part of Cambria county, and Woods' official book of warrants and surveys went into the hands of James Mageehan, deputy surveyor for Cambria county. Still, for years no return was made of the Nicholson survey, but in 1847 Mageehan returned it into the land office, with this certificate appended to the plot: "Situate on one of the South branches of the Conemaugh, Summerhill township, Cambria county and surveys joins, in pursuance of a warrant granted to John Nicholson dated the 8th of August, 1793, surveyed by George Woods, deputy surveyor of Bedford county, in 1793, in pursuance of said warrant and examined by me the 10th day of July, 1842, and found correct. James Mageehan, D. S. of Cambria County." Unquestionably, this was a lawful return of Woods' survey by his successor having authority as to this part of the territory theretofore Bedford county. Up to the date of it, no intervening right had been asserted. If the land was vacant in 1793, it continued vacant, as to all persons except Nicholson or those claiming under him, down to 1847. It should be noted here that certain proceedings had been had with reference to this land between 1793 and 1847. The commonwealth claimed an indebtedness from Nicholson. Proceedings were had under the act of 1807 to adjust and fix the indebtedness and make sale of his lands.

To

that end, commissioners were appointed, who certified they had on March 11, 1808, made sale of his lands,-among others, this tract warranted August 8, 1793, to Edward Brien and Robert Coleman for the sum of $891.94,-and that the purchasers had given bond, with security, conditioned for the payment of the purchase money to the commonwealth. Afterwards, both purchasers having died, the widow and heirs of Coleman ⚫conveyed all their interest in the land to Dorothea Brien, widow and sole heir of Edward Brien, and she paid the full amount of the bond to the commonwealth. In consideration, the commonwealth, under its seal on January 24, 1843, conveyed to her the Nicholson tract, here in dispute. Under the law and usage of the land office, the owner of the Nicholson warrant had no right to claim the issue of a patent, for his survey had not been returned, nor had the purchase money been paid; but the commonwealth, treating him as the equitable owner, sold the land for his debt, accepted the full purchase money from the purchaser, and delivered to his widow a deed therefor; then, four years after, accepted Mageehan's return of the Woods survey. These are, in substance, the material facts of the case.

If the result of the issue depended on the exact date of plaintiff's inception of title, as between him and defendant, it might become important to inquire just what title

Nicholson had acquired by his warrant and survey before the return of Mageehan, which was the question in Drinker v. Holliday, 2 Yeates, 87,-and like old cases. But here defendant claims no title prior to 1889, more than 40 years after Mageehan's return. The commonwealth then grants the land to defendant's grantor, Robert Mitchell. Was the land still hers to convey? That depends on whether it had been appropriated before under the Woods survey, either in 1793, or by Mageehan's verification and return in 1847 on the Nicholson warrant. It seems to be conceded that Woods' marks, if he had made them on the ground, have now disappeared. At the time of the trial the survey had been made 107 years before; but, leaving out of view for the present the survey of 1793, what about the return of Mageehan in 1847? In his certificate he does not say he resurveyed the tract or remarked its lines, but he says it was surveyed by Woods in 1793, and "examined by me the 10th day of July, 1842, and found correct." The learned judge seems to have assumed that Mageehan's sole duty was to copy Woods' survey from his book, and return it to the land office, and that it is improbable he went upon the ground. We do not think the facts warrant such inference. If, as argued, the words "examined by me and found correct" mean only that he examined the plot or plan of survey in the book, and that he found it correct, it may well be asked, how could he find a survey correct by a mere examination of the book? That showed nothing but the warrant and plot. Whether correct or incorrect, there was in the book no means of ascertaining. Mageehan's duty was precisely what Woods' would have been, had the land remained undetached from Bedford county, and Woods had survived and held office in 1842. He would have then known that for nearly 50 years the survey had remained in his office, not returned. Whether the land, or any part of it, had been appropriated under later warrants, he could not tell. He might have been familiar with other and adjoining surveys in that region. It would have been not only his right, but his duty, as a conscientious public officer, to again go upon the ground and re-examine the survey, not for the purpose of changing its location, but for the purpose of ascertaining whether junior rights had, in this lapse of time, intervened, which affected the old survey. If any had, it was his duty to note them in his return to the land office. What it would have been Woods' duty to do, was just as plainly that of Mageehan. Our inference from the wording of the certificate is that he examined the survey on the ground, and found the map of it correct. It needed verification, which could only be had by going upon the ground, and this, in all probability, he did. And this view is corroborated by the testimony of Africa and Mitchell, experienced surveyors. Africa tes

tifies he first went on the ground, having with him a copy of the original survey in 1896. Found a birch corner, which counted to 1842, ran east 218 perches on line marked 1842. He then ran north from the birch and found a well-marked line of 1842 and along the eastern line of the Nicholson found marks of 1842. He also testified to other marks of that year. William P. Mitchell, a surveyor of long experience, testifies to the same effect. Neither their credibility nor their capability is questioned. Some one in 1842 ran and re-marked the lines of 1793. It is highly probable that at that date, 50 years after they were made, not all the marks made by Woods had been obliterated, and Mageehan could follow with reasonable certainty his footsteps. The early surveyors made but few monuments on the ground, compared with the later ones, and were very inexact in their measurements. This land was then worth only 20 cents an acre, and they were not particular. Therefore, from the certificate itself, and the evidence tending to show the lines of 1842, we think the evidence was very significant that Woods in 1793 actually ran this survey on the ground. Mageehan followed him in 1842, and, from his own observations on the ground, verified the correctness of Woods' plot.

Consequently, from his own examination, be certified to its correctness.

The learned judge of the court below seems to have tried the case throughout on a wrong theory; that is, that 107 years after the Nicholson survey the plaintiff must locate his land by visible marks on the ground; failing in that, he must locate it by adjoiners; that he could not locate the survey by evidence clearly tending to show that it had been located by marks on the ground; and that if they had disappeared, and after this lapse of time there was no living witness who could testify he had ever seen them, then, such being the case, he, in effect, held that plaintiff must prove the location by adjoiners. This second kind of evidence was somewhat doubtful. Two of the adjoiners marked on the plot were pretty clearly proven. The others, if not mistakes, were at least doubtful. Woods may have been wholly mistaken as to the warrantee of several of the adjoining tracts, or the warrantee name of them may have been changed in the surveys, but he could not have been mistaken as to what he did on his own survey. The result was to confine the attention of the jury to the one method of proof,-that by adjoiners, the evidence bearing on which was conflicting and doubtful. This, in effect, made the plaintiff's case turn on its weakest point. The appearance of the map, with its four distinctly named corners, the certificate of Mageehan, his apparent work on the ground to verify Woods' plot or map, were very significant facts pointing to an actual location on the ground in 1793 by Woods, and the jury should have been so instructed.

It would be impossible to locate many, perhaps a majority, of the older surveys, by the rigid rule of evidence adopted here. Nearly all the lands described in our old acts of assembly as "within the limits of the late purchase from the Indians." or as lands lying east of Allegheny river and Conewago creek," were, when warranted, unbroken forest. A very large part was taken up by tracts and blocks, and the surveys indicated by but few marks on the ground. Many of these marks, sometimes all of them, are obliterated by time, the elements, or the hand of man, so that it is, after the lapse of more than a century, impossible to locate them by marks on the ground to-day visible; but it is possible to prove by unbroken recognition of their boundaries through generations their original location. As the years pass, and the dates of the original monuments become still more remote, not a vestige of them will remain, so that the next best evidence of where the original marks were when made is proof of where they were recognized to be while still in existence. This testimony is, in effect, that of a sworn officer, as to the 1793 location on the ground, by his own marks on the boundaries verifying the map. It is the strongest kind of evidence as to the original location by Woods.

A very brief glance at the undisputed facts here shows the grievous weight of the burden placed upon the plaintiff at the trial. The deputy surveyor of the commonwealth was bound by his official oath to go upon the ground and execute this warrant. He in substance, by his plot recorded in his book, says he did go upon the ground, measure the land, and mark the corners. Fifty years afterwards, his successor verifies his work, and makes return of the survey, although other vacant land was taken up all around the region about that time, and subsequently no one attempts to appropriate this tract. Ninety-six years afterwards, defendant's predecessor in title, Mitchell, covers it with another warrant and survey, alleging it to be vacant. On his nominal possession he stands, and says to plaintiff: "Prove your title by showing marks on the ground made 107 years ago, or prove that your surveyor made no mistakes in naming his adjoiners. True, my title is only ten years old, but I can point to marked trees of that age, and locate my survey by visible marks on the ground. Therefore my title must prevail."

What we have said, in effect, sustains appellant's fifth assignment of error.

The defendant's sixth written prayer for instructions was as follows: "The record of the return of survey of the John Nicholson tract of August 8, 1793, shows that George Woods, and he alone, made the survey of 1793. The tract must be located by evidence of marks of such survey in 1793; and, failing in such evidence, then it must be located by adjoiners." This point was affirmed, with 54 A.-3

th

this explanation: "We have already instructed you to this effect, with the additional instructions as to the weight you must give to the evidence regarding the line alleged to have been run in 1842." In the general charge the learned judge says: "The warrant is to be located according to the survey made by Woods. If you do not find any marks on the ground, and we do not here, you must locate it by adjoiners. But the land office has accepted the return of survey made by Woods in the handwriting of Mageehan, in which he states he examined it and found it correct; and we feel that if there was absolute proof here that Mageehan had marked a line upon the ground at the date when he says he examined it, and marked it as shown in the draft introduced in evidence, that while it is not evidence in itself alone, and could not be if there was nothing else in the case of the true location of this, yet, if it throws any light on the location made by Woods originally, then it is evidence in this case, and not otherwise." This explanation, when considered in connection with the affirmation of the point, wholly fails to give any proper significance to the fact adverted to. The return, with the certificate, followed by the evidence of Africa and Mitchell, if they were believed, tended strongly to establish a fact which, if established, was of itself sufficient to warrant a verdict that Woods had made and marked his survey on the ground. It more than threw light on the location by Woods. It proved it. The learned judge not only belittles the evidence, but wholly neutralizes the effect it was entitled to with the jury. If the weight of the evidence established the fact of location in 1793, then Ormsby v. Ihmsen, 34 Pa. 462, squarely rules the case in favor of plaintiff. The return made by Mageehan in 1847 remained unchallenged for 42 years,-just twice 21 years. In the case cited we said, as to the presumption of the correctness of a return into the land office after 21 years: "It is more than a mere probability. It is presumptio juris et de jure, a legal conclusion. The marks which it is the duty of the surveyor to make on the ground cannot be permanent. Posts and stones may be removed, either accidentally or by design; trees may be cut down, or decay; the progress of cultivation and improvement tends to obliterate them; and, just in proportion as the land increases in value, do the evidences of title furnished by the surveyor's marks disappear. Where lands have been improved, it would seem more reasonable to expect that no traces of the surveyor's lines should be found after twenty-one years, than that any should remain. Titles would be insecure, indeed, if after such a period the absence of visible marks were held sufficient to invalidate a

returned survey. Time also removes living witnesses; the surveyor and his assistants may die; and necessarily, therefore, resort must be had to the return itself, as evidence

furnished by the officer of the law of what he has done." While the language in Ormsby v. Ihmsen would seem to indicate that after 21 years the return is absolutely conclusive, both as to the facts of location on the ground and its boundaries, this has been explained in subsequent rulings. In Malone et al. v. Sallada et al., 48 Pa. 419, Justice Agnew, in his concurring opinion, says it (Ormsby v. Ihmsen) does not change the law as theretofore held, but merely furnishes us with the elements of an additional rule; "that is, where, from the return of the survey itself, we can discover that the call for an adjoiner is a mistake, even though no line can be found upon the ground corresponding to the line in the return, the call may be controlled by the line as returned, and the other evidences of location contradictory to the call." In Packer v. Schrader Mining, etc., Co., 97 Pa. 379, the case, on its facts, was held to be ruled by Ormsby v. Ihmsen, in these words: "The regularity of the survey being thus legally fixed and absolute, it but remains for a jury to determine whether, upon the ground, such lines, adjoiners, or other marks can be found, as will, to a reasonable certainty, determine the location of plaintiff's claim." It was held in this case that the only question was, was there a corner or line found on the ground, which was a corner or line of this tract in dispute? If so, the question was solved, for the survey must then be made by the courses and distances in the return. To the same effect are Grier v. Penna. Coal Co., 128 Pa. 79, 18 Atl. 79, and Bushey v. South Mountain Mining & Iron Co., 136 Pa. 541, 20 Atl. 549. In the last case it is held that "the rule that after the lapse of twenty-one years the law presumes that a survey regularly returned was made as returned, cannot locate a survey until some monument of it can be found upon the ground. If one or more such marks be found, the law will locate the survey by the aid of legal presumption." It follows, then, that while the rule in Ormsby v. Ihmsen would not authorize Mageehan to go into the woods in 1842 and run the courses and distances of Woods' plot, and then return it into the land office, yet, if he found a single one of Woods' marks, he could, from that mark, by courses and distances, run the survey on the ground, and return it into the land office. That return, unquestioned for 21 years, would be conclusive as to the location of the Nicholson warrant. Where, as here, the defendant denies that either Woods or Mageehan was upon the ground, the return would only be prima facie evidence in plaintiff's favor, but, as we have before noticed, the decided weight of the evidence shows that Mageehan did go upon the ground in 1842, found marks of Woods sufficient to identify the location, and then re-ran the lines of Woods, and made return thereof in 1847. To the same effect

are Glass v. Gilbert, 58 Pa. 266, 292, and Mock v. Astley, 13 Serg. & R. 382.

What we have said, in substance, sustains appellant's eighth, tenth, eleventh, twelfth, and thirteenth assignments. The others, except the first and second, become unimportant on a retrial.

As to the first and second, they have as their foundation the rejection, as evidence, of a deed offered by the plaintiff. As before noticed, Nicholson had become indebted to the commonwealth for lands purchased by him. He had formerly been controller general of the state, and was one of the prominent land speculators of that day, and a large purchaser of land from the commonwealth by warrant and survey; was also a large debtor to her. By special act of March 31, 1806, Nicholson being then dead, the governor was empowered to appoint three commissioners to ascertain, settle, and adjust the amount of his indebtedness, and ascertain the quantity and quality of his lands in each county subject to lien for unpaid purchase money to the commonwealth. For this purpose they were given access to the land office, with the right to inspect all necessary papers. As a supplement to this act, that of March 19, 1807, was passed, authorizing the commissioners to make public sale of Nicholson's lands after due notice in a newspaper printed in the county, or nearest to it, and in Philadelphia, and make report to the governor. He appointed Heister, Evans, and Lyon commissioners, who afterwards reported that they had on March 11, 1808, at Sowers Tavern, in the borough of Lancaster, after due notice, sold, among other tracts, one on the head waters of the Little Conemaugh, between Allegheny Hill and Conemaugh Old Town, held by John Nicholson under warrant of August 8, 1793, containing 439 acres and 112 perches, to Edward Brien and Robert Coleman, and that the commissioners had taken bond, with good security, for the payment of the purchase money for all the land sold that day ($891.94) to the same purchasers. Between that date and January 4, 1843, both Brien and Coleman having died, the widow and heirs of Coleman conveyed all their interest in the land to Dorothea Brien, widow and sole heir of Edward Brien. She paid and had satisfied in full the bond given by Coleman and her husband to the commonwealth. The commonwealth then conveyed to her on January 24, 1843, among other lands, all the estate of Nicholson in the tract warranted August 8, 1793,-the land in dispute. The deed is signed, "A. V. Parsons, Secretary of the Commonwealth," with the great seal of the commonwealth affixed. On June 8, 1844, this deed, without acknowledgment, was duly recorded in the office for the recording of deeds in Cambria county. Afterwards Dorothea Brien sold and conveyed this tract to one McKenzie, and from him, by a reg