Northumberland Coal Co. v. Clement , 1880 Pa. LEXIS 294 ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court,

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 it 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: Hagerty v. Mathers et al., 7 Casey 348 ; Malone v. Sallada, 12 Wright 425 ; Darrah v. Bryant, 6 P. F. Smith 69 ; Fritz v. Brandon, 28 Id. 351.

This contention is as to the location of a tract surveyed in the name of Thomas Billington. It is one in a block of .eleven tracts, for which warrants issued on the 11th of May 1793. They were all owned by one person. The surveys made by virtue thereof were all returned to the office of the surveyor-general on the 3d of March 1794. The block begins with the Daniel Reese on the west, and ends with the Samuel Lobdill on the east. The official returns show the surveys of the first four, and of the sixth, in order, to have been made on the 2d of October 1793. The return of the Thomas Billington, which tract is the fifth in the block, omits to state the precise date of its survey, further than that it was in 1793. It is, however, fair to presume it was made on the same day as the John Reynolds, on the west, and the Mary Ruston, on the east. The remaining five tracts were surveyed on the day next thereafter. The Richard Martin, which lies east of and adjoining the Samuel Lobdill, was surveyed on the 23d of February 1794, on warrant dated the 22d of the month preceding. The Lewis Walker, under which the plaintiff in error claims, lies south of and adjoining the Thomas Billington, and was surveyed on the 22d October 1794, and return thereof made on, the 23d February following.

Nearly ninety years have passed since the Billington' warrant was located. Time has effaced many marks of the survey. Those which were distinctly visible have, to a considerable extent, become obliterated or destroyed. The location of the northern lines of the Billington tract, and of the block of which it forms a part, is unquestioned. They are found distinctly marked on the ground. The main question is, where was the south line of the Billington tract located ?

The testimony of practical surveyors of large experience in tracing original lines, and especially the testimony of those acquainted with the marks made by the surveyor who located the warrants, was properly admitted. It is true a surveyor must not be permitted to testify as to the legal interpretation to be given to a survey,, yet a practical surveyor may testify whether in his opinion certain marks on trees, pile's of stones, or other marks on the ground were intended as monuments of boundaries : Whart. Ev., sect. 444; Davis v. Mason, 4 Pick. 156; Lessee of Forbes v. Caruthers, 3 Yeates 527; Ormsby v. Ibmsen, 10 Casey 462.

The practical knowledge and experience of the surveyor, whose opinion was asked, are unquestioned. The facts proved were amply sufficient to enable him to form an opinion as to the actual location of the warrant. We will refer to some of them. 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 Lobdill 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 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.

Without referring to the evidence more in detail, we think it was sufficient to submit to the jury to find the true location of the tract, and that it was properly submitted by the learned judge. We discover no error in the record.

Judgment affirmed.