Vastbinder v. Wager

Burnside, J.

This case has engaged our most careful investigation. Its importance to all the early surveys in the new purchase, led me to examine the minutes of the executive council, as well as the 'returns of surveys of the first deputies in that section of the state. The act of the 8th April, 1785, Dunlop, 107, opened the office for the sale of lands in the purchase of 1784, at ¿£30 per hundred acres. The warrants were drawn and numbered, and the act prescribed how the owners should locate them, with the. deputy surveyors, and how they should be surveyed and returned. The surveyor-general was directed to nominate to the executive council deputy surveyors; to direct the number of districts, and the extent and boundaries of each. ’ The deputies were to be approved by the president or vice-president in council, who at their discretion might change and alter the districts; Dunlop, 110, sect. 12. On the 18th of April, 1785, the surveyor-general laid off on paper sixteen districts, and afterwards added two more. The Lycoming creek was the eastern boundary of the purchase. He nominated sixteen deputies, who were approved and commissioned by the executive council. The districts were laid off on paper by north and south lines, running from the west branch of the Susquehanna river, to the New York state line. They were each to have a south boundary of seven miles on the Susquehanna river, and the purchase line of 1768, running west from the cherry tree. The deputies were to ascertain their districts. The whole country then was a wilderness, except where spots on the river, as high up as Tanguescutack, had been intruded upon and improved by bold spirits before the purchase, and who were protected in consequence of ££ their resolute stand and sufferings during the late war,” by the 8th section of the act of the 21st December, 1784; Dunlop,- 98. The absurdity of dotting off seven miles for each district on a crooked river, as if it ivas a straight line, from the Lycoming creek to the cherry tree, a distance by water at least one-third more than a straight line, was soon manifest; and we find on the minutes of the executive council, that two of the deputies, (William Montgomery, jun., who was commissioned for district No. 4, and John Hoge, for district No. 3, men of intelligence and integrity,) presented a petition for a survey from the mouth of Pine creek to the canoe place (cherry tree). They were ordered to make the survey, giving notice to the other deputies who might choose to attend, and, upon such measurement, divide that part of the country into ten districts. And the executive council resolved, that this proceeding should not affect any surveys already 'made. I have not been able to find that this order was ever carried into effect. But in 1792, the eighteen districts were thrown into six by the surveyor-general.

Wager, the defendant below and plaintiff in error, gave in evidence -a warrant to Thomas Bowde, No. 260; of the 17th May, 1785, and a survey on this warrant in district No. 6, by John Broadhead, deputy surveyor, in July, 1793. The defendants claimed under warrants to Timothy Pickering, of the 17th May, 1785, and surveys made on these warrants in October, 1785, by James Johnston, who was the deputy of No. 13, of the first allotment. I find, on looking into the surveyor-general’s office, that the Pickering surveys were returned and accepted on the 21st of March, 1786. Broadhead was not one of the first sixteen deputies. The land-office shows that Pickering’s surveys were returned and accepted more than six years before Wager’s surveys were made on the ground. The material question in this case embraces the whole territory of the eighteen districts, and arises on the court’s instruction to the jury in answering the plaintiff’s second point and the defendant’s fourth point. They both substantially embrace the same question.

. The plaintiff asked the court to instruct the jury, “ that if they believed the surveys of Pickering & Co., made on warrants No. 349, 251, and 371, were made west of the boundary of Johnston’s district, they were made out of the jurisdiction of Johnston, and ’ therefore void, and it was the duty of the deputy to know the boundary of his district, and not go over the same ; and if he did go over the same ignorantly, his acts are equally void, though the line may not have been run.” This point the court answered in the affirmative.

By the fourth point of the defendants the court were requested to charge the jury, “ that the district line between Hamilton and Johnston’s district, not being run and marked on the ground in this part of the country, before the location and survey of the Pickering warrant, such location and survey gives good title to the lands therein included, although not located in what was designated as the district of the deputy who made and returned the surveys.” To this the court answered: “ We do not assent to this; it was the duty of the deputy surveyor to define the boundaries of his district; and if he did not do so, and located a warrant on land that was not in the district, such surveys are void; and whether Mr. Johnston, at the time of making the survey, knew the fact of their not being within his district, would make no difference.” When the fact is indubitable, that but few (if any) of the lines were run from the river and the purchase line to the New York line, and that each deputy had a commission for seven miles in width, or believed he had, and when run' accurately, in many places, owing to the bends and courses of the river, he might have less than three miles in width back from the river, it shows the wisdom of the application of Montgomery and Hoge to the executive council, and the wisdom of the change by , the surveyor-general in 1792, in reducing the eighteen districts to six.

It is contended that the case of Prout v. Bard establishes the doctrine the defendant in error contends for, and supports the opinion of the learned judge of the Common Pleas. . We agree that it establishes, that where the deputy surveyors had their districts run out and marked, they were confined to their respective districts. But it does not establish a case like the present, where the whole interior of the sixteen districts was a perfect wilderness, without improvement or a single line run or marked on the ground, and where all the lines were ideal, without a single call, except a certain distance on a crooked river. To run these paper lines and fix what was and what was not within the respective boundaries of the sixteen districts, which the government changed as soon as they discovered their folly, and at the same time declaring the change should not affect any surveys already made, would now be wrong. To attempt to establish the boundaries of the sixteen districts, at this day, by parol evidence, would be taking one man’s land and giving it to another, with many valuable improvements, unless he might bo protected by the statute of limitation. Time gives stability to title to real estate; on this the prosperity of the Commonwealth much depends. To make a line now, by parol, between Hamilton and Johnston’s districts, would be destructive of vested rights and of legal principles heretofore held sacred. We hold the law to be, that where the district lines were not originally run and designated on the ground, one shall not now be made, which will disturb a survey more than sixty years old, and, as in this case, located, made and returned more than six years before the junior survey had existence. Such a survey is not to be disturbed by now fixing, by parol, a boundary between Hamilton and Johnston’s districts. Nor is this principle new; for in Goddart v. Glonningei’, it was held, that a-survey made by a deputy, before the lines of the district were run, of land reported to be in his district, will not be considered void forty years afterwards, when it is discovered by more careful examination, that there was a mistake as to the lines of the district. 5 Watts, 209.

The bills of exceptions to the evidence are so imperfectly returned, that it is difficult to give an opinion upon them. It may be well, however, to say, that the diagram of the districts obtained from the surveyor-general’s office, if an entire copy, was evidence ; so was the certificate of the appointment of James Johnston-as deputy surveyor. Why the tax books .and receipts for taxes were rejected, I am at a loss to understand. When proved, they are always received in evidence for what they are worth.

Judgment reversed, and a venire facias de novo awarded.