Humphrey v. Cooper

Opinion by

Me. Justice Dean,

This is an action of trespass by plaintiffs against defendant for cutting timber on a tract of about 50 acres of land in Jefferson county. Both parties claim title to the land on which the timber was cut; it was unimproved, and in tlie actual occupancy of neither up to the date of the alleged trespass.

On the application of William Willink and others known as the Holland Land Go. warrants for the survey of nine tracts were issued to them in 1792. These warrants were placed in the hands of William P. Brady, deputy surveyor, who on November 7 and 10, 1794, located the nine tracts in a block three surveys wide and three deep. In liis return the three eastern and three middle tracts are plotted each as 477 rods long and 320 wide, and each containing 900 acres and allowance; the three western tracts, while of the same width as the others, yet as only 461 rods long, and each containing only 870 acres and allowance. The original corners of the block corresponding to the date of the survey were found upon the ground as late as 1863. In fact, there is no doubt as to the location of the block. Further, it was clear, that at the western, north and south line of the block the surveyor had overstepped the boundary of an older survey made the year before, in tlie name of Nichols & McPherson, and that after his field work was done he had discovered this fact; so, before making his return, he adopted on his plot the eastern boundary of the Nichols & McPherson as the western boundary of his block; as this shortened the lengths of his north and south block lines, he shortened the north and south lines of the western tracts of the'block, so that they appear on the return as but 461 rods long instead of 477, the plotted length of the other six tracts. The plot assumes, that the north and south line of the Nichols & McPherson survey had the same course as that of the block; but in this the surveyor was mistaken. Evidently, after discovering he was over on the Nichols & McPherson, he did not run the eastern line of that block on the ground, for it is a well marked line and, run by its course, cuts off about 48 rods of the northwestern tract and 27 rods of the southwestern tract of the block. As before noticed, there is: no question as to the location of the block, but this contention arises from a dispute as to the location of . the north and south interior line dividing the three western tracts from the three middle ones. Without noticing further the chain of title of plaintiffs and defendant respectively, it is sufficient to say, the true location of this interior line determined the title and right of possession in one or the other of these parties. The plaintiffs had title to survey made on warrant 2983, which was the northwest corner of the block; they claimed that the surveyor when he discovered that his location of the block overlapped the Nichols & McPherson survey, changed his return by moving this survey, 2983, and the next one to it, 2981, 50 rods further east; ran and marked an interior line 50 rods further east as the eastern boundary of the three middle warrants, and plotted a division line between the three western and three middle warrants, which division line throws the land in dispute to the west side of that line and within the boundaries of 2988, their survey. The defendant claimed that the surveyor, on discovering his mistake in running over on the Nichols & McPherson, merely shortened in his return the north and south line of the three western warrants of the block, leaving the interior lines stand as he had run them, and the quantities in the three middle and eastern surveys unchanged.

It was very clear that there was a well marked line, very old, fifty rods east of that apparently returned in the plot of Brady’s survey, which line was claimed by plaintiff to have been run on the ground as the division line between the middle and eastern tracts, and that this line had been run by Brady after he had discovered that the location of the block overlapped the Nichols & McPherson. If this old line, had indisputably, counted to the date of Brady’s survey, 1794, plaintiffs’ theory would have been established, and they would have been entitled to a verdict; but the evidenee was conflicting; some of it was very significant, as tending to show that this line counted only to 1806, twelve years later than the Brady survey. It started from a corner on the south line of the block, and to that extent was connected with the original survey of the block, but the corner, instead of a hemlock as called for, was a beech, and the beech counted only to 1806 ; the line then extended north by a course parallel with the line claimed by defendant, but the evidence to show that it terminated at the northern line of the block was very vague. True, there was some evidence tending to show that the 1806 marks were but a remarking of an older line, but there was other evidence to contradict this.

The court below was of the opinion it wras a question of fact as to the true location of the dividing line between the three western and the three middle surveys, and submitted the evidence bearing on that point to the jury, who found for defendant, and we have this appeal by plaintiffs. Eight errors are assigned, all except the last alleging errors in the charge to the jury. As already noticed, the contention arose because of dispute as to the location of the division line between the three western and middle warrants. The location of the north and south lines of the block was not disputed. There was evidence, that two lines had been run north and south parallel to each other, and about fifty rods apart; either of them, on competent evidence might have been found by the jury to be the original division line; if the one located nearest the east boundary of the block was the true one, then defendant had trespassed on plaintiffs’ land; if the one nearest the western boundary was the true one, the land belonged to defendant. In submitting the conflicting evidence tending to establish one or other of these lines to the jury, we are unable to detect any substantial error in the instruction. Plaintiffs’ first point asked the court to say that, as there was a well defined line fifty rods east of the line claimed by defendant, ■which extended from the north to the south boundary of the block, that was “ a pregnant circumstance ” to show that the surveyor after he discovered his mistake in overlapping the Nichols & McPherson survey abandoned the line claimed by defendant and located this new line and made return thereof in his survey. The court, in effect, affirmed this point, by saying the evidence should be considered by the jury, but modified the language thus: “ While we will not say the matter referred to is a pregnant circumstance, still it is a material-matter.” The exact difference in the significance of “ a pregnant circumstance ” and a “ material matter,” which the learned judge of the court below saw when he gave a modified answer to the point, and which counsel for appellants now see when they assign the answer for error, is not very clear to us; we think it entirely probable the distinction was not quite clear to the jury, and that, in consequence, they gave to the circumstance, whether a “ pregnant one ” or a “ material matter,” all the weight it was entitled to; for that reason the assignment is not sustained.

The second assignment of error to the interpretation put by the court on the act of March 29, 1824, is not sustained. The act was intended only to prevent the wilful or careless cutting of another’s timber: Kramer v. Goodlander, 98 Pa. 353. The third, fourth, fifth, sixth and seventh assignments complain of the reference made by the judge in his charge to the Timothy Pickering warrant. It appears, that some ten years before the date of these surveys a warrant had been laid on part of the same land in name of Timothy Pickering'; it seems to have extended over parts of three of the eastern and middle tracts. Whether actual surveys had been made on it, or whether any survey had been returned into the land office, did not appear.. One thing did clearly appear, the deputy surveyor, Brady, who located this block, was ignorant of the existence of any such survey, and nowhere notes it in his return; nor does he recognize in any manner a single mark upon its lines. Obviously, he ran the lines of his block wholly regardless of it. Neither party claimed an inch of land under it or professed to locate his land by it. Why the learned judge of the court below referred to it at all in his charge, we cannot discover; it was lugged in, only to be thrown out again as of no consequence. While we cannot discover any reason for reference to it, neither can we discover that reference to it did plaintiffs any harm. After the appearance of this ghost, the jury was informed of its harmless character, and their attention directed to the evidence bearing on the true location of the division line; the testimony on each side tending to establish the one line or the other by marks and monuments on the ground was pointedly called to the notice of the jury, without allusion to the Timothy Pickering as a material fact. If we could discover that the attention of the jury had been diverted in any degree from the real point in dispute by this wholly irrelevant subject, we would pronounce this part of the charge error ; but as we are of the opinion it could not have had tbe slightest weight in shaping the verdict, these assignments are overruled.

The objection to the deposition of Henry Keys is not noticed, because appellants have neglected to print it as part of the evidence. If evidence be objectionable, and counsel expect us to so decide, the least they can do is to conform to the rule of court which requires the printing of the testimony.

The judgment is affirmed.