Morrison v. Seaman

Opinion by

Mr. Justice Williams,

The plaintiff’s right to recover in this case depends on the location of the boundary line between warrants numbers 3725 and 3721, in the name of Robert Morris warrantee. These warrants are part of a considerable number of surveys made in the ■name of the same warrantee, returned as made on consecutive days, and as located in a compact body. The deputy surveyor adopted a well marked district as the eastern boundary of the Morris lands. The Allegheny river and four small river surveys were adopted as the western boundary, and on the south the lands of the Holland Land Company were called for as an adjoiner all the way from the district line to the river. The north line of these surveys is the only continuous east and west line that is shown by the evidence to have been run upon the ground by the deputy surveyor in the location of the Robert Morris tracts. The space inclosed by the exterior lines just spoken of was subdivided into twenty-two separate tracts arranged in tiers. The first, second and third of these tiers going west from the district line contain six warrants each. The fourth tier reached to the river and to the old surveys and contained four warrants of which 3725 was the second- in order going north from the line of the Holland Land Company. An original line was run along the west boundary of the first and second tiers wrest from the district line, and corners marked, for the several tracts upon both lines. The result of this work is that each of the twelve tracts in these two tiers has four original corners made for it on the ground, while the warrants in the third tier have an original east line and northeast and southeast corners, the location of which is apparently free from difficulty. The warrants in the fourth tier rest upon the river, and the four old river surveys at their western boundary. Their location is fixed therefore by reference to original marks and corners in their west lines as solidly as the place of warrants in the third tier is fixed by their east lines and corners. The situation of the twenty-two tracts, so far as the work of the surveyor is concerned, is shown by the accompanying diagram in which the dark lines indicate the lines run or adopted by the surveyor, die dotted lines those that are admitted to be chamber work.

It will be noticed that 3721 has an original east line with northeast and southeast corners, and 3725 has an original west line with northwest and southwest corners. The open line about which this controversy arises is the line which is at once the east line of 3725 and the west line of 3721. The plaintiff’s theory for locating this lino is to treat the whole body of the Morris’ surveys as a block, and run a line from the quaking aspen, the southwest corner of 3731 and the southeast corner of 3724 in the north line of the Holland Company, northerly between six and seven miles to the post, the northwest corner of 3704 and the northeast corner of 3727. This would locate the division line about sixty rods east of where the courses and distances of the' survey of this individual warrant would place it and throw a large excess of land over the official quantity into the plaintiff’s warrant 3725. The defendants assert that the original work on the ground is sufficient to locate each tract in the entire body of Morris surveys, and that the conditions do not exist which authorize the application of the rules relating to block surveys. Nevertheless, the defendants locate this division line by the same method adopted by the plaintiff, with the difference that they would start from the place of the post at the north, and run southerly to a point some sixty rods further west at the line of the Holland Land Company than the plaintiff’s location of the quaking aspen, thus fixing the course and position of the line, not by the surveys of these two warrants, but by marks made or adopted in the lines of exterior surveys. The learned judge of the court below adopted the defendants’ position that these survej’s did not constitute a block, and that the interior lines were not to be located by the rules applicable to a block; at the same time he adopted also the defendants’ method of running the division line, by starting at the post on the north and running southerly across the Robert Morris lands to an assumed common corner for numbers 3724 and 3731, in the north line of the Holland Land Company. This would put the large excess of land within the lines of 3725 and 3721, or most of it, into the defendants’ warrant 3721. The small diagram^* will show the relative position of the two lines thus contended for, having a common starting point on the north, and diverging from each other until at the Holland Land Company’s north line they are over sixtjr rods from each other. Neither line rests on any assured original work at its south end, made for or adopted as the common corner of Nos. 3724 and 3731. • The only agreed point on either line is the common terminus at the north.

It is apparent from wliat has now been said that the controlling question, in this case is whether either of these lines, and if either, then which of them, is entitled to consideration. In popular use the phrase “ a block of surveys ” means any considerable body of contiguous tracts surveyed in the same warrantee’s name, without regard to the manner in wbicb they were originally located. In legal use thé same phrase is employed to describe a body of contiguous tracts located by exterior lines, but not separated from each other by interior lines. Tbe Robert Morris tracts would have constituted “ a block ” in the legal sense if only their external lines had been on tbe ground. Tbe interior or division lines separating the body of land in the block into separate tracts would, in that case, have been ascertained by reference to monuments originally made or adopted in the exterior or inclosing lines, or by laying off the tracts by courses and distances in accordance with the returns of survey. But the interior lines of the Robert Morris warrant are not left to be ascertained in this manner. Two tiers of tracts directly west of the district line, containing six tracts each, had all their corners marked upon the ground by the surveyor, which fixed absolutely the position of all their lines. The lines of these tracts must now be run in accordance Avith the marks made in 1793, as they afford the best evidence of how and where the surveyor placed them. In the absence of monuments of the original surveys, calls for adjoiners, courses and distances and the legal presumption that the surveys were made as they were returned into the land office are to be resorted to in order to locate the line of any given survey: Ferguson v. Bloom, 144 Pa. 549. In the case of interior members of a block the rule is that marks made by the surveyor for any tract in the block are evidence for the purpose of fixing the lines of any other tract in the same block: Fisher v. Kaufman, 170 Pa. 444. But where lines are run and marks made by the surveyor for a particular 'tract sufficient to fix its place on the ground, the general rule is that its place must be found by tracing the footsteps of the surveyor. The rules applicable to the location of individual warrants are to be followed in such a case, and those applicable to the interior tracts of a block have no application. If many of the tracts inclosed by exterior lines are without marks upon their OAvn lines, made for them, still, if one or more of such tracts has original marks on its lines of an earlier date, Avhieli were adopted by the surveyor for the location of the tract in question, such adopted wox*k avíII control the location of the tract in the same manner as if the max’ks had been made by the surveyor instead of being adopted by him.: Bloom v. Ferguson, 128 Pa. 362. We come now to inquire Ixoav the division line shall be i’un between 3725 and 3721. The Robert Morris surveys do not constitute a block in the legal sense of that word. There are on the other hand definite and ascertainable monuments of the origiixal survey made or adopted for each of the twenty-four tracts, including 3725 and 3721. Such being the case we should retrace the footsteps of the suxweyor as nearly as the marks he has left behind him will permit. Turning then to the returns of survey we find that the location of the twenty-four tracts upon the grouxxd was the wox'k of five different days by the deputy surveyor. The four warrants in the southeast corner of the body, viz: Nos. 3705, 3733, 3732 and 3714 were returned as having been surveyed on July 30, 1793. On the next day, July 31, the three warrants north of 3733 and the three warrants north of 3732 were surveyed. The two tiers of warrants directly west of the district line were thus put upon the ground with four original comers made or adopted for each of them. The survey was suspended at this point until August 6. The surveyor then seems to have resumed work at the Ironwood, the northwest corner of No. 3711, and to have run thence to the Allegheny liver, and down the river far enough to enclose No. 3727. He then plotted in the interior lines, and so located 3704, 3734, 3720 of the third tier and 3727 of the fourth tier. These were locations of individual surveys made by work on the ground peculiar to them, which fixed their general position, and afford the material for fixing the proper location of their open lines. On August 7, the surveyor resumed work, presumably continuing down the river to the old surveys, and then tracing their course and adopting the marks upon the line of 873 to the point where he plotted the intersection of the south line of No. 3726 with the east line of 873. He then plotted in the open lines of No. 3707 and 3721.

Diagram No. 3 shows the lines run, adopted or plotted, up to the close of August 7, 1793, and the unappropriated space still open for the work of the following day, and within which Nos. 8725, 3724, and 3731 were located on that day. On August 8, he appears to have followed down the lines of the river surveys to the Holland Land Company’s north line at the white oak, the southwest corner of 3724, and plotted the remaining lines of 3725 and 3724 of the fourth tier, and of 3721 of the third tier. This was a good individual location of each of the twenty-four tracts. To separate the tracts belonging to the third tier from those belonging to the fourth tier we should go upon the original north line and find the post set by the surveyor for the northwest corner of 3704 and the northeast corner of 3727. A line south from this point to intersect a line running west from the white oak, the southeast corner of 3704, would fix the southwest corner of 3704 and the position and direction of the division line, which if not influenced by work on the ground would continue along the west side of each successive warrant in the third tier to the aspen in the north line of the Holland Land Company. But the post is not found at the common corner of 3727 and 3704 in the north line of these surveys. The north line of both warrants overruns in length the official distance. Under such circumstances the excess of distance between the Ironwood and the Allegheny river must be divided proportionally between warrants 3727 and 3704 and a common corner for them established for them in this manner. This point fixed, and the survey of 3727 and the three warrants belonging to the third tier which were located by the deputy surveyor become at once certain, and if no disturbing monument is found to deflect this line it would continue south along the returned courses and distances to the southern boundary of the Morris surveys. But if so continued no trace of the aspen is found at the southern end of the line. As we understand the testimony of the surveyors the position which the aspen occupied when the surveys were made is not now known. . The place of the cherry, the southeast corner of 3731, seems to be known, and its position is such as to give an easterly inclination to the east line of the tract, but the influence of this irregularity does not necessarily affect the west line of any other tract than 3731. The aspen being no longer on the ground, and the place where it once stood being unknown, its place must be fixed by dividing the surplus length of line proportionally between 3724 and 3731, in the same manner as was done in fixing the position of the post, the common corner of Nos. 3727 and 3704. The west line of 3731 should be run from the point so fixed as the place of the aspen, north to the place of the post, the southwest corner of 3721 and southeast corner of 3725. This may deflect the division line between the two warrants resting on the line of the Holland Land Company on the south from the general course, or the division line between the third and fourth tiers of warrants north from this point, because each warrant will upon this plan be located by the marks that are peculiar to it, which are enough in number and sufficient in character to fix the position and the lines of each of the Morris tracts.

The line now in controversy will therefore be found by ascertaining the place of the post, the common corner of 3704 and 8727, in their south line, and following the returns of survey in the location of the four warrants surveyed on August 6,1793. This done, the three warrants surveyed on August 7 should be located according to their calls and the original work upon their lines. This would fix the lines of 3721. Its eastern line would be the western line of 3732. Its northern line would be the southern line of 3707 for which it calls. Its southern line would be run according to its courses and distances westerly from the fallen ash, the southwest corner of 3732, and its western line would be, unless controlled by some monument made for it, of which there is no evidence, continuous with the west line of its northern adjoinerNo. 3707. No. 3725 was put upon the ground one day later, and has the western line of 3721 as its eastern boundary. As against 3725 the lines of 3721 were on the ground, and the lines of the younger survey must conform to those of the older. When the lines of the several surveys made on August 6 and 7 are ascertained by following the surveyor’s work southerly from the place of the post, the northwest corner of 3704, to the post and stones, the southwest corner of 3721, the lines of the surveys made on August 8, so far as they call for the lines of 3721, must follow them, and the southwest corner of 3721 is a common corner of 3725, 3724 and 3731. The division line between 3724 and 3731 must be run from this common corner to the place of the aspen. Any deflection in the division line which this may cause must be attributed to the fact that 3731 has three original corners, and that the original work must control both calls and courses and distances that are not in harmony with it. The deflection, if any, being due to the work on the lines of this survey (No. 3731) will not extend to or affect the lines of any warrant north of it. For this there are, as have-been pointed out, two good reasons, first, the warrants north of it -were first located and have seniority; next, if this were not so, the disturbing monument is peculiar to this warrant and No. 3714, on the east side of it, and its influence cannot extend beyond the lines of the tracts to which it belongs, since-all the other tracts in the entire body of the Morris surveys must be located by the original work made or adopted for them, respectivel}’. The line from the aspen north to the common corner of 3731, 3725 and 3724 is not before us. What is said of it here is by way of showing that it has no relation to the line now in controversy, but must be adjusted on principles peculiar to it whenever it may come in controversy. As it does not appear where the disputed line would be if located in accordance with this opinion, it becomes necessary to reverse- the judgment in this case and direct a venire facias de novo to issue, that its position may be fixed in the manner indicated herein.

The judgment is accordingly reversed and a venire facias de novo awarded.

* This diagram is shown on page 83.