Payne v. Howard

Chief Justice Mercur

delivered the opinion of the court November 13th, 1884.

It is well settled that when the courses and distances given in a return of survey differ from the natural and artificial boundaries on the ground, the latter shall govern. Where there are no such monuments on the ground, and there is a discrepancy between the courses and distances given and the adjoining lands called for, the latter will prevail: Koch v. Dunkel, 9 Norris 264. But in ascertaining the location of a tract of land, the inquiry is not where it should or might have been located, but where it actually was located: North-umberland Coal Co. v. Clement, 14 Norris 126.

In plaintiff’s abstract of title furnished, it is averred that the warrant issued on the 10th of December, 1784, and the survey thereon was made on the 6th of May, 1800 ; but that survey was not given in evidence. Hence the case lacks the essential evidence of official location on the ground.

It is true a patent dated the 23d of February, 1847, was given in evidence, and some evidence was given of a survey made about 1850. It is not proved by wliat authority that survey was made, and one of the persons who carried chain in making it, testifies that the patent does not cover the land as surveyed. Thus without proving the original location of the warrant, and when it is shown that the land in contention is not covered by the patent, the attempt is made by an unofficial survey, to apply the patent to other lands. This is such a departure from all recognized rules in ascertaining the true location of a warrant issued by the Commonwealth, that the court very correctly took the case from the jury.

Judgment affirmed.