Wagner v. Wagner , 1871 Pa. LEXIS 214 ( 1871 )

The opinion of the court was delivered,

by Thompson, C. J.

Certified copies of official surveys, connected and separate, given in evidence on the trial below, and now before us, very conclusively show, that the Samuel Davis application, referred to in the testimony, was located in 1783, and the survey duly returned into the land office; that the Thomas Hamilton and Margaret Miller warrant, issued on the 25th September 1784, called for the Davis survey, and was surveyed and returned into the office in accordance with its call, to wit: as adjoining the Davis survey. This primá facie excluded the possibility of a vacancy between these surveys; and unless the state of facts was rebutted in some way, the Commonwealth had from thenceforth no unappropriated lands between these tracts, and could confer no title upon any subsequent grantee from her, claiming independently of the warrantees mentioned. There was not the slightest testimony in the case to show that the Hamilton and Miller warrant was actually located short of its call; the consequence of which is, that it was carried to the Davis survey upon principles too well settled to be for a moment doubted. There are many adjudicated cases to this effect: Hall v. Turner, 2 Barr 244; Younkin v. Cowan, 10 Casey 198; Bellas v. Cleaver, 4 Wright 260; Caldwell v. Holler, Id. 160. The fact, if true, that the eastern line of the Davis survey was never run upon the ground, nor calls for any natural or artificial boundary on that side of the tract, amounts to nothing in this case. In that category it will be located by its courses and distances, and to this point the Hamilton and Miller will go. With whichever tract the Mantz warrant interferes, whether with the Davis or Hamilton and Miller, the patent from the Commonwealth conferred no title on him or those claiming under him. None of the cases cited by the learned counsel for the plaintiff in error militate in • the least with the doctrine herein settled, and they need not be further analyzed.

The learned judge below very properly refused to leave to the jury the question of abandonment by the owners of the Hamilton and Miller warrant and the adoption of a line run in 1802 between the Davis and the Hamilton and Miller tract. Evidence was entirely wanting to establish this theory. For what purpose this line was run, or by whom or in whose interest, is not shown. Nor was the presumption against abandonment by a party who had bought and paid for land overcome by a single fact. There is no pretence that this line was officially run on an order of resurvey. It had therefore no official character or sanction by either of the owners of the adjoining warrants, and it was not claimed that the plaintiff had title by adverse possession.

We see no error in any part of the record, and

The judgment must therefore be affirmed.