Sugar Valley Lumbering Co. v. Barber ( 1878 )

Chief Justice Agnew

delivered the opinion of the court,

The facts of this case present a plain duty — that is to follow a former decision directly on the question, in the absence of evidence to indicate a better rule. There is nothing in this case to enable us to adopt a rule of title to govern it, different from that of actual location given to us by-the late Justice Thompson, in the unreported case of Beck v. Zimmerman. The case is a block survey returned to contain thirty-nine tracts, but with room for only thirty-six whole tracts. In this block two tracts and a part of the third have no land, but where the loss shall fall is uncertain, under the evidence. If the order of succession from the leading warrant must be observed, we are without evidence of this order. If priority of sale by the owner of the block be the rule, we have no evidence of the order of sales. If the date of survey be adopted, this would displace the James Linkton survey, which has a certain location by fixed monuments on the ground, in the northern boundary of the block. It is one of the last three surveys made on the 16th day of December, and yet is admitted to be tied to its place by a fixed law. Added to this, it is impossible to run the tracts consecutively from the 9th to the 16th of December without over-leaping earlier surveys, disjointing the block and making inextricable confusion. And were we to adopt dates wherever they occur in the blocks, we do not know they would correspond with the order of sales by the owner of all, and as to whom order of date is of no moment.

Having, therefore, no evidence on which a rule of title can be based, after displacement of some of the tracts, because of a lack of territory, we can do no better than to adopt the rule found in Beck v. Zimmerman; this is that the boundary of the tier of surveys on the western side of the block being defined by a well-marked line found upon the ground, and the black oak northwest corner of James Linkton, being found on the north line of the block, and the length of the tract on the south line of the block from the chestnut oak being given, the western boundary of the second tier of surveys is also fixed. This being so, and the John Wester tract being one of this second tier, its location is necessarily fixed where its owners have claimed it to be, and the James Kriter survey cannot displace it. It is of no consequence, therefore, where the loss of territory may fall, the John Wester survey has a fixed location of its own. This is strengthened by another fact. The tract adjoining John Wester and called for on its south side, to wit, the Joseph Wester (the subject of the Beck v. Zimmerman suit), lies in a tier of surveys not affected by the lack of territory. This is the third tier from the south line of the block, which has its length on the ground. Now, if we plant the John Brady tract by its actual monuments, where the Thomas Jenkinson appears on the connected draft, it runs over the north side of Bernard Hinkman (in the third tier), only in a point of a triangle, leaving a location for the Bernard Hinkman, which loses only a part of its quantity. The third tier, therefore, retains its proper place, with simply a loss of a part of the land in one of its tracts, but still extending to the diagonal tier on the eastern side of the block. This diagonal is one of the block lines, for it ha,s a monument at each end and a straight line from corner to corner constitutes the boundary. Thus the second tier of surveys from the west being fixed by actual monuments, and the third tier from the south being likewise so fixed, the John Wester in the second tier from the west, and in the fourth tier from the south is fastened to its place by the first tier on the west and third from the south, so that it cannot he removed. Joseph Wester, its southern boundary in the third southern tier, is fixed also by the verdict and judgment in Beck v. Zimmerman.

Hence the rule of dates laid down in the court below is not applicable. In a block survey where the owner of the block owns all the surveys, which are bounded by paper lines, and he sells in no legal order of succession, it is plain the date rule is without meaning. Possibly, there may be a case where it must be resorted to in a block of surveys, but its true place is in separate surveys for different owners, where priority of survey necessarily gives title. According to the facts before us and the former decisions the court below erred.

Judgment, reversed and a venire facias de novo awarded.