Harris v. Burchan , 1 Wash. C. C. 191 ( 1804 )

WASHINGTON, Circuit Justice

(charging jury). The questions which I shall first consider are, has James Potter a title to the land in possession, of both the defendants, or either; and secondly, has the plaintiff a title? As to the land possessed by Bur-chan, it is admitted, that Potter's warrant for one hundred and fifty acres, or his survey in 17S3, would not include it; so that if the plaintiff has a title, he must succeed against Burchan, whatever may be Potter’s title, in respect of the land held by Pennington. As to this, it appears that a survey was made of Potter’s warrant, by M’Clay, in June, 1774, and that the survey was returned into the office in 17S3; and therefore having all the appearances of regularity, it must be taken prima facie to be regular, unless the contrary appears. To prove it irregular, and therefore not binding on Potter, the testimony of three or four witnesses is relied on; who state, they attended J. Harris’ survey in 1783, and that Potter’s improvement was not comprehended in the survey. But it is worthy of remark; that those witnesses do not speak of M’Clay’s survey in 1774; but refer to the lines as run by Harrison 1783; and by comparing Harris’s survey with M’Clay’s, which it professes to follow, or ought to have followed; It appears that if one of the lines of Harris’s survey had been extended as far as M’Clay’s ran, the improvement as laid down in Harris’s diagram, would have been included. Against this evidence, is opposed the testimony of William M’Clay himself, who states; that Potter himself pointed out the improvement and hickory sapling on the ground, and that they were included, and that he was present at the survey. Now, most clearly, if Potter chose to locate his warrant as it was surveyed, even though the improvement had been left out; it does not lie in his mouth now, to say that it was not properly located by survey. And if 'M’Clay’s testimony is believed by the jury; and unless they are satisfied that the warrant was improperly surveyed; then in point of law. Potter had, and of course the defendant Pennington has no title to the land, for which this ejectment is brought; because if the warrant was once properly surveyed, and returned into the office, it was functus officio; it merged the prior title by improvement and warrant, and the same warrant could not afterwards be surveyed on the land in question, or on any other vacant land. If, on the other hand, the jury should he satisfied that Potter’s warrant was, without his knowledge, or against his consent, removed by the surveyor, to lands to which it did not relate; then the survey was not binding on Potter; his title stands now on the ground it did prior to that survey, and being prior to the plaintiff’s warrant, his title is the best, to one hundred and fifty acres, to he laid off in a reasonable shape, so as to include his improvement. You are the proper and sole judges of the credibility of witnesses, and the weight of evidence, and must ascertain this fact; if it be in favour of Potter’s pretensions, your verdict ought to be in favour of the defendant, Pennington; if otherwise, in favour of the plaintiff.

The next question is, has the plaintiff a title? because, if he has not, then he cannot recover, however weak the defendant’s may be, and this question involves the interest of both defendants. The questions of law raised as to this point, I forbear to give any opinion about, because, upon the fact, it will perhaps be unnecessary; and because the points are of extreme importance — 'viz. whether, in a case like this, the want of actual survey is sufficient to defeat the plaintiff in ejectment; and whether upon the principles conceded by the defendant’s counsel, the survey, quoad every thing not stated as the ground of the caveat, (which does not oppose the survey, but the issuing of a patent for one specified reason,) is not to be considered as accepted; and whether it is incumbent on the party claiming under the survey, to prove that all the necessary circumstances were disclosed by the surveyors. But how is the fact? I have already stated the evidence on both sides, and the arguments urged by each. That the survey is to be presumed regular, until the contrary appear, is a clear principle. Extremely mischievous would be the consequences, if a man, having a paper title, apparently regular, should be compelled, in asserting his title, to prove that the public officers performed their duty. It would be substituting a title, dependent upon the uncertain tenure of men’s memories, for a written one. You will therefore consider and weigh the evidence, and the credit of the witnesses, and you must be perfectly satisfied in your consciences, that the survey was not actually made, before you can find a verdict grounded on that as a fact. If the survey was regularly made, then most clearly Potter could not survey, under his warrant in 1783, the land in question, held by Pennington; even although you should be of opinion that M’Clay’s survey under his warrant, in 1774, was irregular, and not binding upon him; and in this ease, your verdict, as to Burchan, must of course be for the plaintiff; and as to Pennington, also, unless you should be of opinion, not only that his warrant was improperly laid in 1774, but that the plaintiff’s also was irregularly surveyed, by his not going on the ground.

The jury found for the plaintiff.