Packer v. Schrader Mining & Manufacturing Co.

Mr. Justice Gordon

delivered the opinion of the court, May 2d 1881.

The question involved in this case is a very simple one — one of location only. The Moore survey was older than the Tybout. It was regularly returned and accepted, and was also patented. If, therefore, there were any marks found on the ground, or any adjoinders called for by the survey, as returned to the land office, by which the position of the tract coaid bo ascertained, this controversy ought to have been determined by the jury in favor of the owners of this survey.

We repeat, the question was one simply of the location of the Moore warrant. Was there a corner or line found on the ground which was a corner or line of this tract ? If so, the question was resolved; for from either the location of the warrant could be readily and certainly determined by simply following the courses and distances called for by the survey. So, if there were known adjoinders, the location could, in like maimer, easily be established.

But the court below, departing from this simple proposition, erred in two principal points : 1. In submitting to the jury the question whether or not the Moore survey was a chamber survey; 2. In saying to the jury that it was not enough that the surveyor was on the ground to survey adjoining warrants if he was not there to survey the Moore warrant. This, of course, meant that he could not adopt the lines of older or contemporaneous surveys as the .lines of the Moore tract. But in Parshall v. Jones, 5 P. F. Smith 153, it was said, following McRhea v. Plummer, 1 Binn. 227, and Caul v. Spring, 2 Watts 390, that the lines of older surveys may be adopted for a later warrant, without re-running or re-marking them, and that such a survey is not a chamber survey. To us, indeed, it seems strange that a proposition so obvious and reasonable should ever have been doubted; for as it is admittedly improper to re-mark old lines when adopted for a new survey, why should they be re-run ? Certainly, for the purposes of location, this would be an unnecessary labor, and to us no reason occurs for the enforcement of such a work, except to compel the deputy surveyor to earn his fees.

A chamber survey is one that has never been made upon the ground, but where a survey has been returned and accepted without a caveat, the presumption, after twenty-one years, as was held in Ormsby v. Ihmsen, 10 Casey 462, is juris et de jure that it was made on the ground. In other words, this presumption is one that no fact, however obvious, can rebut. In the case just cited the court below, whilst holding that, after the period mentioned, the survey, returned by the proper officer, was by law presumed to have been run upon the ground, nevertheless instructed the jury that this presumption might be rebutted by positive proof. This was held to be error; that such was not the nature of the presumption attending a survey returned without objection for more than twenty-one years; that the presumption was absolute in its character — a legal conclusion. A like result was arrived at in the cases of Lambourn v. Hartswick and Mock v. Astley, 13 S. & R. 113; 382. Justice Duncan, who delivered the opinions in both these cases, in substance said that, prima facie, a survey was made as returned, and that it was the business of the adverse party to disprove it; but that, where time, analogous to the Statute of Limitations, had run, where the owner had continued to pay the public taxes, and where there had been no caveat, a presumption of law ought to arise in favor of the regularity of the survey.

Following these cases, Huston, J., in Norris v. Hamilton, 7 Watts 91, held “that after a survey had been returned more than twenty-one years, the presumption that it had been legally made became a violent presumption, or as is said in the last case, not to be contradicted.” The same idea is repeated in Bellas v. Cleaver, 4 Wright 267, per Thompson, J.

How, then, in view of these authorities, does the case in hand stand ? The Moore warrant purported to have been surveyed on the 21st of November 1792, and was duly returned, accepted and patented; this final act of the land office occurring on the 24th of February 1795. Then, for twenty-one years after the date of this survey, the prima- facie presumption was in favor of its correctness. Nevertheless, within that time, this presumption was prima facie only, and might have been rebutted by those interested in the interfering Tybout survey, by a caveat or in an action of ejectment. Neglecting this, allowing the survey to remain unquestioned for the period above mentioned, the presumption became absolute and was no longer open to attack.

The regularity of the survey being thus legally fixed and absolute, it but remains for a jury to determine whether, upon the ground, such lines, adjoinders or other marks can be found as will, to a reasonable certainty, determine the location of the plaintiff’s claim.

Finally, as the Moore and Betz warrants were located by the same surveyor, and as the former was not returned until after the survey of the latter, the adoption of the junior warrants, as adjoinders of the senior survey, ought to have no other effect than to help in the location of the older warrant.

The judgment of the court below is reversed, and a new venire is ordered.