Long v. Shields , 1902 Pa. Super. LEXIS 277 ( 1902 )

Opinion by

Oblady, J.,

The plaintiff and, defendants in this action of trespass derive their title from a common source, the controversy arising over the legal and actual western boundary of plaintiff’s lot. David and W. W. McKinney were the owners of a property which they divided by fences separating it into parts, and as evidence thereof a draft or map was made to conform with the artificial divisions on the ground, subsequent to which they sold to Mary A. Craig by a deed dated April 21,1884, one of the lots or subdivisions, describing it as “ Beginning in the centre of Seminary Lane 452 feet, 1 inch northwardly from the northernmost rail of the Pittsburg, Fort Wayne & Chicago Railway; thence north 37 degrees, 53 minutes west, 212 feet, 2 inches to the line of land of John H. Hampton; thence along the line of said John H. Hampton’s land south 52 degrees, 7 minutes west, 78 feet, 9 inches; thence south 37 degrees, 53 minutes east, 212 feet, 2 inches to the centre of Seminary Lane ; thence along the centre of Seminary Lane north 52 degrees, 7 minutes east, 78 feet, 9 inches to the place of beginning.” This deed was placed on record on May 1, 1884. David and W. W. McKinney sold by deed dated May 3, 1884, the lot between the railroad and Mrs. Craig’s lot to William Dickinson, and described it as “ Beginning at the distance of 37 feet northwardly from the northernmost rail of the Pittsburg, Fort Wayne & Chicago Railway on the line of Seminary Lane; thence by said lane north 52 degrees, 7 minutes east about 334 feet, 4 inches to the line of lot recently conveyed to Mrs. Mary A. Craig.” The other courses and distances were not important in the case.

It is to be noted that every distance mentioned in this deed is definitely stated except the last one, and that any uncertainty as to the ending point of the southern line mentioned as above, is made certain by the location of the lot “recently conveyed to Mrs. Mary A. Craig.” While the Craig deed was on record when Dickinson bought his lot, the surface markings of the permanent fences that had divided the two lots for ten years previously could not be ignored by him. The case is not one where the land was sold on the faith of a record description alone, and it is clear from the evidence that Dickinson did not rely upon the description in the Craig deed. In 1885 the old fence between the two lots was taken down and rebuilt on the same location by the adjoining owners, and this division was acquiesced in by them for the next fourteen years. With this uncontradicted evidence of the markings on the ground at the time of purchase, it was competent for the plaintiff to show that the division made by the surveyor was in accordance with the directions given to him by the owner of the two lots. The deed to Dickinson granted only “ to the line of lot recently conveyed to Mrs. Mary A. Craig; ” and with this distance indefinitely stated in the deed it was competent for the plaintiff to show that, prior to the sale to Dickinson, he, Dickinson, had examined the property and measurements and that it was understood between him and his grantor that he bought only what was left after the sale to Mrs. Craig.

It is a well recognized principle that lines and work marked on the ground must govern in determining the location and extent of a survey; that everything that is committed to paper afterwards in relation to it is intended and ought to be a copy of what was done and what ought to appear on the ground, in the doing of which, errors may be committed, that render it less to be relied on than the work as it appears by the marks on the ground: Lodge v. Barnett, 46 Pa. 477.

The vital question in this case is the true location of the line agreed upon by Dickinson and his grantors, and this is determined by the location of the line of the Craig lot. The distance mentioned in Dickinson’s deed along Seminary lane must yield to the monuments that mark Mrs. Craig’s western boundary. At the time of Dickinson’s purchase, Mrs. Craig’s land was enclosed by four fences, and she was in possession to these fences which were made by the former owner of both properties for the purpose of subdividing the original property, and they were clearly defined and recognized as marks on the ground limiting the title and defining the possession. As such they must stand with like effect as if they had been written into the conveyance. The courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by proof of their former existence when the marks or monuments are gone: Morse v. Rollins, 121 Pa. 537.

It has been repeatedly held that the intention of the parties to a deed must be ascertained from the written expression and not from testimony dehors the instrument, except in rare cases: Fuller v. Weaver, 175 Pa. 182.

This case is clearly within the exception. It was not attempted to locate a line or to establish a new one by parol. The contention was to continue the line as established by a recognized fence for fourteen years as the dividing line between the properties. This line was found by the jury to be where the McKinneys had erected the fence and where both Dickinson and Mrs. Craig found it as a monument on the ground at the time of their respective purchases. This is an artificial monument applicable to the description marking the adjoiner called for in the Dickinson deed, and the holding of the court below is not in conflict with Green v. Schrack, 16 Pa. Superior Ct. 26. In that case no monuments were referred to, there was no call of any kind for an adjoiner, and it was held that under such circumstances the distance noted in the deed must govern. But in this, the division fence erected by the Mc-Kinneys, the possession of Mrs. Craig up to it, the examination by Dickinson of the property before buying, the call in the deed to the Craig lot as an adjoiner, combine to make this a case where the distance mentioned in the deed must give way to the boundaries found.upon the ground.

The judgment is affirmed.