Penn v. Ingham , 3 Wash. C. C. 90 ( 1811 )

WASHINGTON, Circuit Justice.

There is nothing in the objection of the act of limitations. It never began to run, until the plaintiff was ousted, or adversely kept out, which was not prior to 1789; and from that time, the plaintiff was not barred, before twenty-one years had run out The meaning of the law is this: — If, at the time it passed, a person was disseised, he was bound to bring his action within fifteen years. But, if he was afterwards disseised, the act of limitations, which would then begin to run, would not be a bar, in less that twenty-one years. In this ease, therefore, the suit was brought long within the twenty-one years from the time of the ouster, if, in fact, there was one.

WASHINGTON, Circuit Justice (charging jury). The only contested point is, whether the survey of this manor, was duly made within the true meaning of the act of 27th November, 1779. The other requisites of the eighth section are not contested. The plaintiff appears with a regular paper survey, made, and returned, by a proper officer, and he is told by the defendant, who does not pretend to any title, other than that of possession, settlement, and improvement, made sixteen years after the survey of the manor was made, that this survey was not regularly made. If he set up a right in himself, by survey or settlement, when the plaintiff’s survey was made, there might be some reason, in a defendant thus circumstanced, making such a defence. But it seems strange, that a mere intruder (for such is the defendant, since his settlement being made upon land, then, and long before appropriated, he is not one of those persons whom the laws of this state favour), should be permitted to protect his possession, by questioning the regularity of the plaintiff’s survey. At the time that survey was made, and long afterwards, there was no positive law of this state, which required that the surveyor should make an actual survey, by going on the ground, and running and marking all the lines. There was a propriety, and even a necessity, that this should be done, in cases where the lines could not otherwise be laid down; and this, the public, and particularly the individual whose warrant was to be located, bad a right to expect from this public officer.' But, if from former lines, or natural boundaries, known to the surveyor, he was enabled, by running some of the lines, to lay down the other lines of the survey, with accuracy, where was the necessity of going over all the lines on the ground? If the warrant was special, no actual survey was necessary. Even the act of 1785 does not declare a survey void, if not actually made on the ground, although it directs the officer to run and mark the lines on the ground. But, suppose an actual survey necessary to the validity of the title, it is admitted, that the presumption, that this was done, is so strong in favour of the survey returned, as to require clear evidence from the person who would impeach it, in order to repel such presumption; and, we will add, that it should be veiy clear and direct, where that presumption is fortified by the antiquity of the survey.

The testimony of the chain carrier, in this case, is entirely negative, and proves only that, at the particular time he speaks of, the lines on the south of the manor were not run by the surveyor for whom he carried the chain. But it does not follow, that those lines were not run at the same time by another surveyor, or that they were not after-wards run, or had been previously run; such evidence as this, is too weak, to be set in opposition to the presumption in favour of the survey. As to the evidence of the two surveyors, who could not find the lines on • the south of the creek, it ought to have very little, if any, weight in the cause; because the surveys they made were ex parte; and if the plat they produced had been objected to, the court would for this reason have rejected it. If notice had been given to the plaintiff, and accepted, and they or their agent had attended; or if the survey had been made under an order of this court, although the plaintiff had not attended, being duly notified of the time and place; that survey, and the testimony of these men, might have been important. But, even by their own showing, they failed to trace the lines on the south; one of them, by not finding an important corner, and the other, very probably, by not following the old line of marked trees. But what seems conclusive is this, that it would seem impossible for a surveyor, by running the lines on the north of this creek, without having also got the precise course of the creek, to plat by course and distance, the lines on the south, not parallel with those on the north: and to do all this with such accuracy, as for it to turn out, on actual experiment. precisely right, as it appears this did, by the evidence of one of these very surveyors.

Verdict for plaintiff.