Ferguson v. Bloom , 144 Pa. 549 ( 1891 )

Opinion,

Mr. Justice-Williams:

This case was here in 1889, and is reported in Bloom v. Ferguson, 128 Pa. 362. The controversy then was, as it now is, over the boundary between the Steiner and Scott surveys. The eastern terminus of this line, the white oak, the common corner of these surveys, is on the ground, but the line westerly from the white oak is not. The question presented is, how shall this line be located ? Shall it be done by means of the original work on the lines of these surveys, and the returns of the deputy surveyor, or by marks made for other tracts, which were neither adopted, nor referred to in any manner, as monuments of the Steiner or the Scott, by the surveyor who located them? We held when the case was here before that the work made for and peculiar to these surveys was sufficient to locate them, and to fix the common boundary between them, and that the rules applicable to detached surveys should be applied for this purpose. It is now conceded that as the case was then presented the rule laid down was correct; but it is urged that, as now presented, a different question is raised, and a different rule should be applied. The difference contended for is that the testimony now shows that the Steiner and the Scott and their adjoiners on the west, the Frey and the Slough, are members of a block of sixty-four surveys ; and for that reason marks on the block lines should control the location of the line in controversy, notwithstanding the fact that the marks appropriate to the Steiner and the Scott are conceded to be ample for that purpose. Upon this theory, we are asked to apply what may be designated as the block system of location, in order to ascertain the boundary between two well-located tracts. In order to determine whether this should be done or not, it is desirable to inquire what the block system is, when and why it is applied, and whether the evidence in this case brings it within the operation of the rules applicable to block locations.

The public lands were sold by the state in a manner that is well known to the profession. A person desiring to buy made his “ application ” in writing, stating what land he wished, and as nearly as possible where it was located. On receiving this application, a warrant issued from the land office, directed to the proper deputy surveyor, authorizing and requiring him to survey and lay off for the applicant the land applied for. This was taken to the deputy, who went upon the land, made a survey of the tract in obedience to it, and then returned it, with a copy or description of the survey so made, to the land office. When this return was accepted, and the land paid for, the state made its deed, called a “ patent,” conveying the tract to the applicant or his vendee. When more land was desired than could be included in one tract, the person wishing to buy made applications in the names of the members of his family, his servants, and employees, as well as his own; thus securing a batch of warrants at one time, which were at once transferred to him by the nominal applicants. When this happened, the deputy surveyor would sometimes locate the entire batch of warrants in a body, as one tract, and such a body of surveys, made at one time, for one owner, was called a block. If the surveyor discharged his duty, and marked the lines of each tract, the word “ block ” was sometimes used to describe the body of lands held by one owner, but in such cases the location of the tracts comprising the block was made on what may be called the individual system. If only exterior lines of the block were marked, the location of the separate tracts was practicable only upon what we have called the block system.

It seems to have been at one time doubted whether a mere enclosure of a body of tracts by an exterior line was a good location of the several warrants included in the block; but it was held by this court that, as between the owner of such a block and the state or a junior grantee, it was enough if the block was fairly enclosed, so as to identify the body of land appropriated to the several tracts that made up the block. But it was also held that a surveyor who had located a batch of warrants in this manner, had not discharged his official duty, and for that reason could not recover by suit the fees prescribed by law for the execution of the several warrants. He was, however, allowed to recover upon a quantum meruit for the services actually rendered, since by means of them the owner had acquired title to the body of land enclosed by the block lines: Woods v. Ingersoll, 1 Binn. 146 ; McDowell v. Ingersoll, 5 S. & R. 101.

The next question raised upon these imperfect surveys was whether an interior tract, which was without any lines or marks of its own, could be located at all. The opinion was entertained by some land lawyers that it could not be, and that, as in the case of a detached survey, for which no lines could be found, the land was open for another appropriation. This court distinguished between the detached survey, without marks, and that which was in the interior of a block, holding that the latter might defend against a junior warrantee upon the outer lines of the block to which it belonged, because these showed an appropriation of all the land within them, leaving nothing that could pass under the junior warrant. For this purpose, the marks on the block lines became a monument of the individual survey, not to fix its boundaries, but to show an appropriation of the larger body of which'it was part. In Eister v. Paul, 54 Pa. 196, the contest was between a junior warrant with lines on the ground, and a senior warrant located as part of a block. The holder of the junior survey denied that the senior warrant had been actually executed by a survey of the land called for; and the holder of the senior warrant was driven to fall back upon the exterior lines of the block in which it was, to show an appropriation of a larger body, including his own survey. For this purpose, it was said that the marks on any part of the block lines belong to each tract in the block; for, by locating the body of land enclosed by them, they necessarily protect each and every part of it from a second appropriation. In Pruner v. Brisbin, 98 Pa. 202, the plaintiff claimed under a warrant and survey of 1859. The defendant’s, warrant and survey were of 1793, and part of a block. A location of the block on the ground was admitted, but the plaintiff contended that the location was further south by the breadth of two tracts than the defendant alleged it to be. If this was so, the defendant’s warrant, following the block to which it belonged, would be carried two miles further south, and the land covered by plaintiff’s survey would be left open for appropriation by it. The real question was over the location of the block, and whatever marks fixed that, fixed, not the tract lines of the defendant’s survey, but its general location as part of the block, and so made a defence against the jupior warrantee. Here, again, it is easy to' see that the marks on the exterior lines became marks of the several tracts enclosed by them, as against a younger survey.

The effect of a mere external enclosure was next raised between vendees of the owner of the block, holding distinct tracts. Diagram No. 1 shows a block containing thirty tracts, having an external enclosure, but no interior or tract lines. How are these to be fixed? If no tract corners are marked on the block lines, they must be run in accordance with the returns of survey. If corners are to be found on the block lines, these will control the courses and distances given in the returns, and the interior lines must be protracted across the block in accordance with them. ' This is shown by diagram No. 2, in which dotted lines show the interior or tract lines protracted from the marks on the exterior lines of the block. If these marks were not made upon a careful and accurate measurement of distances, they will change the course of every tract line and the form of every survey, as illustrated by diagram No. 2. But in such blocks this system of location is absolutely necessary to prevent a failure of title to lands which the state has fairly sold, for which it has been fully paid, and which it has formally conveyed by its patent resting on the preliminary application, warrant, and return of survey. It is nevertheless a wide departure from the established mode of making or locating surveys, and was devised to save the title of a purchaser from being defeated by the failure of an officer to discharge his full duty. For this reason the circumstances under which it may be resorted to have been defined with some care. In Mock v. Astley, 18 S. & R. 382, it was said a foundation for its application in any given case must be laid by shbwing two facts: First, the existence of a block must be established “ by the production of documents showing title to the whole body.” This shows a grant by the commonwealth of her title to the whole body composing the block. Next, the evidence must show that the tracts composing the alleged block were located in a body without interior lines. The same question was presented in Schnable v. Doughty, 3 Pa. 392. The rule was there stated in these words: “ The interior lines of a contiguous body or block of warrants need not be marked on the ground; but, unless the party claiming under one of such warrants gives evidence of the warrants covering the space within the outer lines of such block, which alone are marked on the ground, his survey must be treated as an isolated one; and, the outer lines of his survey not being found on the ground, the jury must pass upon the fact whether his particular survey was actually made.” In Glass v. Gilbert, 58 Pa. 266, the question was raised in the court below and decided in conformity with the rule laid down in Schnable v. Doughty. In this court, the rule was recognized as correctly stated, but, as the contest was over the question of a sufficient external enclosure, it was said that it Was not applicable to the case. Upon the authority of these cases, and upon principle, it is clear that if there are any interior lines on the ground they are of equal value with external ones, as they are equally the “ foot-prints of the surveyor,” made at the location of the tracts, and for interior members of the block. The general rule is that when there is work on the ground, made for and peculiar to a given tract, such work will control the location of the tract, and fix the place of its lines: Thompson v. McFarland, 6 Pa. 478; Hall v. Tanner, 4 Pa. 247; Cox v. Couch, 8 Pa. 147; Younkin v. Cowan, 34 Pa. 198; Malone v. Sallada, 48 Pa. 419; Grier v. Coal Co., 128 Pa. 79. If these marks leave a line or parts of lines without any monument on them to fix their place on the ground, the return of survey is to be resorted to, for the law presumes conclusively, after twenty-one years, that the lines were run by the surveyor as he has returned them into the land office : Lambourn v. Hartswick, 13 S. & R. 113 ; Caul v. Spring, 2 W. 390 ; Nieman v. Ward, 1 W. & S. 68; Collins v. Barclay, 7 Pa. 67; Ormsby v. Ihnasen, 34 Pa. 462; Grier v. Coal Co., supra. When, therefore, the work of the surveyor, made for the particular tract, is found on the ground sufficient to identify the tract, the legal presumption attaches to the work so found, and resting upon it* protracts the remaining lines or parts of lines along the official courses, and completes the enclosure : Wharton v. Garvin, 34 Pa. 340; Bellas v. Cleaver, 40 Pa. 260; Packer v. M. & M. Co., 97 Pa. 379.

We have thus two systems for ascertaining the proper location of a survey; the natural and general one, which rests on such of the original marks made for the tract as can be found, and on the legal presumption arising from the return of survey as to such as cannot be found; and the block system, which is applicable where no internal lines were run, and where, therefore, no marks exist to guide in the location of internal tracts or lines, except such as may be found on the exterior of the block.

Turning now to the case before us, we have a question of boundary between, not two interior tracts without lines, but two well-located surveys. The work that is still found on the Steiner and the Scott is shown by diagram No. 3. The two tracts are practically enclosed by that work, although a part of the western line is not on the ground. What remains to complete the enclosure of .both is to separate them by a line running westerly from the white oak, a common corner, thoroughly identified. As there are no marks on this line to override the return of survey, it must be run from the white oak, according to its official course, to an intersection with the west line. • Diagram No. 4 shows the original work on the Slough and the Frey. These are practically enclosed by their own established lines and corners. They are returned as adjoining the Steiner and the Scott. Their eastern line is open, but its place is fixed by the work on the ground. Diagram No. 5 places the Slough and the Frey in their proper positions adjoining the Steiner and the Scott, and shows that they do not adjoin as they were returned. It also shows the work on the Steiner that is peculiar to that tract. Now, it is clear that no one of these four tracts can be located by the marks on the lines of the block of sixty-four surveys to which they belong, because (a) the lines of the block are not before us; (¥) the “ documents showing title ” out of the commonwealth to all the members of the block are not before us ; (d) the evidence shows the existence of original interior lines running through the block in both directions ; (d) the tracts in question are absolutely located by marks upon the ground, made for and peculiar to them.

But it may be said these four tracts should be considered as forming a subordinate or interior block, carved out of the large one, and entitled to the application of the same principles for the adjustment of its interior lines as the large one might be. Without entering into the discussion of the question thus suggested, it cannot be doubted that if a subdivision of a block asserts its right to be treated as a block, it must take that right subject to the limitations which are applicable to a block, and must make the same preliminary proofs. It must appear that the lines on the ground were run to inclose the sub-block as a block, and that the individual tracts are without lines of their own, or that are peculiar to them, by which they may be located as separate surveys. If now we look at diagram No. 3, it will be seen that the Steiner is well located by work that is peculiar to it. Beginning at the white oak, we have an original corner. An original line- runs along its eastern side to its northeasterly corner, which is identified. Thence a marked line fixes its northern boundary to the northwesterly corner. Thence a well-marked line of the proper date marks its western boundary for half or two thirds the breadth of the tract. Three lines and three corners of this tract are on the ground, by which the fourth line and corner are readily ascertainable, and by which their position is fixed with certainty. The tract needs no aid from the work of any other tract or from any line of the alleged sub-block, but, standing on what is unquestionably its own monuments, can hold its location, and every part of it, against all comers. But it is urged that, inasmuch as the returns of survey make the Fi^r adjoin the Steiner, and the Slough adjoin the Scott, along the entire western side of each, and give to the four tracts a common interior corner at a post, they must be so located as to have a common corner. This is giving more weight to a call for a post that it is admitted was never on the ground than to the work which locates the Steiner and the Scott and to the legal presumption together. Then, too, the marks on the ground contradict the return as to the relative position of these surveys. The marks show unmistakably that the Scott is one half mile longer than the Slough, and that the northern boundary of the Steiner is a half mile farther north than the Frey. The returns of survey show the south lines of the Frey and the Steiner to be parallel with the north lines, and both the south and north lines to be continuous. The work on the ground shows the north line is not a continuous line, but that the Steiner is pushed a half mile beyond the Frey, with well-marked lines all the way around the projecting part of it. The presumption that lines returned as parallel are so, must prevail; unless it is overcome by marks on the ground. There is no mark on the south line of the Steiner, to deflect it from its official direction and its proper relation to the other lines of the tract. The presumption ought, therefore, to prevail. Moreover, the rectangular form of the tract will always be preserved, when this is practicable: Massie v. Watts, 6 Cranch 148. Locating the Steiner by its own work, we not only have regard to the legal presumption that the lines returned as parallel are so, but we preserve the rectangular form of the tract, and of its adjoiner, the Scott. Treating the Frey and the Slough, in the same manner, that is, locating them by their own work, and by the aid of the presumptions to which we have referred, we make their lines parallel, and the figure of each rectangular.

The learned counsel for the appellant contends that the four tracts must have a common corner, because the returns call for one, although it is conceded that it was never on the ground. To locate this he would run a diagonal line from the white oak to the sugar, and where this line intersects the. line southerly from the work on the west line of the Steiner to the gum, he would plant a post for the common corner. This location would answer one call of the returns of survey, viz., the call for a common corner. It would disregard the return as to the form of each of the four tracts, as to the north and south line of each being parallel, and as to the official course of the line westerly from the white oak, and that easterly from the sugar. As between two proposed methods of location, where the work on the ground will permit, that should be preferred which fills the largest number of the calls of the return of survey. Not only is the diagonal line thus left without support upon the returns alone, but, as we have already seen, the work on the ground contradicts and overrides the return as to the manner in which these tracts adjoin each other, and pushes-all the work pertaining to the easterly pair one half mile farther north than that which pertains to the westerly pair. In other words, the returns of survey are shown by the work on the ground to be mistaken as to the manner in which these tracts adjoin. The fact, as demonstrated by the actual work of the surveyor, is that the Steiner adjoins the Frey only about one half the breadth of the latter, and then for a half mile adjoins another member of the same general block, having well-marked lines of its own from the time it leaves the Frey, around three of its sides to the white oak, as shown in diagram No. 5.

To recapitulate; the argument in favor of treating these four tracts as a block rests on the return of survey, which makes them adjoin along the entire breadth of each, and gives them a common corner at the post. This return is, however, discredited by the work on the ground, which shows that they do not adjoin as the return indicates, and that they cannot have a common corner without doing violence to the courses of the division lines, to the relation of these lines to those north and south of them, and to the form of all the tracts. The argument against treating them as a block may be stated thus: (1) There is no proof that they were located as a block. (2) The work on the ground shows that the Steiner has marks peculiar to itself, not common to or in any manner affecting the location of the Frey or the Slough. (8) The Steiner is well located, one half mile northerly of its returned location, by marks which, as between it and the Frey, are peculiar to it, and are inconsistent with the assumed block location. (4) The individual location not only gives effect to the work on the ground, but to a majority of tbe official calls in the returns of survey.

So much importance is attached by the appellant to the sugar, the common corner of the Slough and the Frey, that it may be desirable to consider briefly its position and significance. It is conceded that it is not called for by, or referred to in the return of survey of either the Steiner or the Scott. If it is a monument of the Steiner therefore, it must be made so by the fact that the line in which it stands was run as an exterior line of a block of which the Steiner is a member, and for the purpose of locating its lines. But the testimony of the surveyors shows that the line in which it stands extends across the large block of over sixty tracts, and was run to subdivide that block, and fix upon the ground two corners of each tract abutting on it on the east and on the west. The sugar is therefore the common corner of four tracts, as shown in diagram No. 6, viz., the Frey and the Slough on the east, and the Burke and the Ham-bright on the west. Such subdivision lines might be so run as to divide the large block into several small ones, having only exterior lines. If regard was had to the returns of survey only, it might be contended, in accordance with the position of the appellant, that the Steiner was a member of such an interior or sub-block; but, as we have seen, the work on the ground is inconsistent with such a contention. The Steiner has two western adjoiners, as shown on diagram No. 5, with an original line on its west side. Its north line is not part of a long line enclosing or helping to enclose other tracts. Its west line is not an open one, to be fixed in the subdivision of a block by lines resting on monuments in the block lines. The line in which the sugar stands has no connection with the north line of the Steiner, which stops one tract short of it; none with the west line, which is parallel with it; none with the east line, which has the Steiner, the Martin, and other tracts, with an intermediate tract line between that and it. It is very clear, therefore, that the Steiner is no part of a block to which the Frey belongs. If the returns of survey would present that appearance, the work on the ground shows that the returns are mistaken.

The rules pertaining to block locations are resorted to where an individual location cannot be shown, to fix the lines and save the location of a tract; not to change the lines or distort the figure of a tract well located as an individual or separate survey. If, therefore, marks of the original survey are found, as in this case, on three sides of a tract, and some of these marks are peculiar to the tract, and are not common to the other tracts alleged to form part of the block, an individual or separate location is established. The position of an unmarked corner or an open line will be fixed by the aid of the legal presumption that the lines were run as returned. This presumption, resting on the work found, will protract the lines, and enclose the tract as an individual location. Both methods of location cannot be resorted to at the same time. If the tract is part of a block, it must be so located, and can be located in no other way. If it is a separate survey, it must be located by its own monuments, aided, if need be, by the legal presumption. We think the Steiner is well located as a separate survey by its work on the ground, part of which is peculiar to it, and is not connected with the exterior lines of the alleged block or with the lines of any member of it.

The assignments of error are not sustained, and

The judgment is affirmed.