In Pennsylvania, after a survey of a tract of public land,
whether a chamber survey or an actual one, has been returned more
than twenty-one
Page 129 U. S. 689
years, the presumption that it was actually and legally made is
conclusive, and cannot be controverted by a party claiming under a
junior survey.
Clement v. Packer, 125 U. S. 309,
explained and distinguished.
A consent by coterminous proprietors of real estate to mark a
boundary line supposed to run according to the marking between
undisputed tracts, given by both in ignorance of the real facts and
of the existence of a conflict, does not estop either from claiming
his rights when the mistake is discovered, nor can it be construed
as a license from the one party to the other to cut timber on the
disputed tract up to the mistaken boundary line.
A petition for removal of a cause from a state court to a
circuit court of the United States on the ground of diversity of
citizenship, filed after a judgment therein has been reversed by
the supreme court of the state and the remand of the case for a new
trial, is in time.
The plaintiff below was entitled to recover for the cutting and
carrying away up to the time that he sold.
Trespass
quare clausum. Verdict for plaintiff, and
judgment on the verdict. Defendant sued out this writ of error. The
case is stated in the opinion.
MR. JUSTICE LAMAR delivered the opinion of the Court.
This is an action of trespass
quare clausum fregit for
timber felled and carried away, originally brought in the Common
Pleas Court of Bradford County, Pennsylvania, where, after certain
amendments of the record with respect to the parties thereto, the
case stood as
Elisha A. Packer, Plaintiff v. The Schraeder
Mining & Mfg. Co. A judgment of that court, on a verdict
in favor of the defendant, having been reversed by the supreme
court of the state, and the case remanded for a new trial, 97
Penn.St. 379, and three other verdicts having been set aside by the
trial court, the case was, on application of the plaintiff, removed
into the Circuit Court of the United States for the Western
District of
Page 129 U. S. 690
Pennsylvania on the ground of diverse citizenship of the
parties.
The declaration averred that the defendant, by its agents and
employees, entered upon plaintiff's lands in the years 1867, '88,
and '89, and cut down and took therefrom over 2,000,000 of feet of
timber, amounting in value to $15,000.
The defenses pleaded to the action were (1) that defendant did
not commit any of the trespasses complained of on plaintiff's land;
(2) that the land on which the alleged trespass was committed did
not belong to the plaintiff, but was the property of the defendant
itself. It was also contended by the defendant that the plaintiff,
through his agent, had aided, by consent and acquiescence, in
establishing a boundary between the two contiguous tracts of the
parties, up to which he, the plaintiff, agreed that defendant's
agents and officers could cut and carry away as much timber as they
pleased. Issue having been joined upon these pleas, the case was
tried by a jury, resulting in a verdict in favor of the plaintiff
for the sum of $8,000, upon which judgment was rendered. The
defendant sued out this writ of error.
Upon the trial, the plaintiff, in support of his claim to the
land in dispute, introduced evidence deducing his title from a
warrant granted by the Commonwealth of Pennsylvania to one George
Moore for a tract of 375 acres of land. The official return shows
that the warrant was issued on the 27th of April, 1792, and that
the survey was made for the said George Moore on the 21st of
November, 1792. The survey is thus described in the official
return:
"A certain tract situated on the waters of Towanda Creek,
Luzerne County, beginning at a post; thence by land of Joseph Betz
and Henry Betz, north, twenty-nine degrees east, three hundred and
eighteen perches, to a hemlock; thence by vacant land north,
sixty-one degrees west, two hundred perches, to a post; thence by
the same and land of General Brodhead south, twenty-nine degrees
west, three hundred and eighteen perches, to a post, and thence by
land of Samuel Cooley south, sixty-one degrees east, two hundred
perches, to the beginning, containing three hundred and
seventy-five acres, and allowance of six percent for roads,"
etc.
Page 129 U. S. 691
As evidence to show that the land in dispute is part of this
George Moore tract, the plaintiff produced copies of the returns of
these surveys, called for as adjoinders, the location of which, it
is claimed, was fixed by the evidence beyond dispute. And in
connection with that evidence, he called several surveyors, who
gave testimony, with maps and other returns, tending to show, by
identifying the hemlock northeast corner, and other marks on the
ground corresponding with the survey, that the Moore tract, located
according to its calls, embraced the land in dispute.
The defendant, on his part, introduced evidence to show that the
land in dispute was a portion of a tract of about 409 acres,
surveyed March 24, 1794, in the warranty name of Andrew Tybout. He
introduced a copy of a warrant and return of the Tybout tract, and
a patent from the state to one Daniel Brodhead for that tract.
Evidence was also given by defendant showing that original marks
were found on certain trees on the north, east, and south lines of
the Tybout survey, and that the hemlock northeast corner, the sugar
southeast corner, and the hemlock sapling southwest corner, called
for in the return, were marked, respectively, as corners in 1794.
The hemlock sapling had disappeared, but the defendant's surveyor
determined the age of the corner by a witness found there, and by
other signs.
Defendant also introduced evidence of certain surveyors, tending
to show that no marks upon the ground had ever been found for the
Moore survey on the line north from the hemlock sapling corner or
on the line west from the hemlock northeast corner thereof which
bore the date of such survey. In this connection, it put in
evidence certain official maps from the land office of
Pennsylvania, showing the location of what is known as the "General
Brodhead Lands," lying west of the west line of the Moore survey
extended southerly, and also produced evidence tending to show that
a line bearing marks dating 1792 was found from the sugar tree, the
southeast corner of the Tybout tract, to the hemlock sapling corner
mentioned, and that the sugar tree was marked as a corner of 1792,
and that a corner of 1792 was found at the hemlock sapling
Page 129 U. S. 692
corner. Other evidence was introduced by the defendant designed
to show the nonexistence of an actual survey of the Moore warrant
according to the official return thereof, the details of which need
not be stated here.
In connection with this contention, the defendant offered to
give further evidence, founded upon examinations made upon the
ground by surveyors, to show that the Moore warrant was not
actually surveyed on the ground according to its return of survey,
but was surveyed, together with the Cooley and other warrants, to
the south of it, in one block, of which the Moore was the northern
member; that the north line of that block, if actually surveyed
upon the ground in 1792, was run between the hemlock sapling and
sugar corners, corresponding to what was claimed by the defendant
to be the south line of the Andrew Tybout tract; that no line of
1792 was surveyed on the ground for the Moore warrant north from
the hemlock sapling corner, nor west from the hemlock northeast
corner of the Tybout tract, and that the line south from the
hemlock northeast corner aforesaid was run for warrants to the east
of said line, and was merely adopted by the return of the Moore
survey. To this evidence the plaintiff objected on the ground that,
twenty-one years and upwards having elapsed from the date of the
Moore survey, there was a presumption
juris et de jure
that the said survey had been made as returned, and that the
evidence was therefore inadmissible. The court sustained this
objection, and excluded the evidence so offered, to which ruling
the defendant excepted.
The defendant also contended on the trial of the case that the
plaintiff was estopped from setting up any claim to the land in
dispute by reason of certain alleged acts and declarations of his,
and of his duly authorized agent, one Jacob De Witt.
The evidence which it produced on this subject tended to
establish the following facts: prior to the year 1866, the
plaintiff, at that time a resident of New York city, purchased a
large amount of lands lying east of and adjoining those of the
Schraeder Land Company, the predecessor of this defendant, and
including the tract in controversy, none of which lands he
Page 129 U. S. 693
had ever seen. Soon after that purchase, he employed Jacob De
Witt as his agent and attorney in the management and protection of
said lands from depredations, etc., and gave him full power and
authority to carry out the purposes of his agency.
The land company, having in contemplation the erection of a
sawmill and extensive lumbering operations and being desirous of
painting a boundary line of its lands as a guard against
trespassing upon the lands of adjoining owners, informed De Witt of
its intentions, and, upon his assent thereto, as plaintiff's agent,
the company employed on its own responsibility one Z. F. Walker to
run and paint such line. Walker knew nothing of any conference's
having taken place between De Witt and the company upon the subject
of the painted line. He was paid for his work by the company alone,
and his instructions to paint the boundary line of the Schraeder
lands were received from it.
Having in his possession certain old maps of the lands in that
neighborhood, including both the Moore and Tybout tracts, some of
which showed the interference between these two tracts, and certain
old field notes made by a surveyor in 1828 while surveying the
Brodhead lands, Walker went upon the lands and painted a line on
the north, east, and south sides of the Tybout tract according to
its location claimed by the defendant.
Afterwards, De Witt, having examined certain portions of this
painted line, assented to it as a correct boundary line between the
lands of the company and those under his management and
control.
This occurred in the summer of 1866. In the following fall, two
members of the executive committee which had charge of the affairs
of the land company went to New York city to see the plaintiff and
assure themselves of De Witt's authority for establishing the
painted line. They saw plaintiff and informed him of the
transaction that had taken place with regard to the running of the
painted line. He replied to them that he had never been on the
lands, but that De Witt was his attorney and agent in the matter,
and what De Witt did met
Page 129 U. S. 694
his approval. In 1869, after most of the cutting had been done,
De Witt again expressed himself as satisfied with the painted
line.
A question also arose in the progress of the trial as to the
time to which the plaintiff was entitled to claim damages, it being
contended by the defendant that he had sold and conveyed the lands
in question to Jacob De Witt on the second of November, 1869, by an
absolute deed of general warranty, a copy of which was introduced
in evidence. The plaintiff, however, claimed that that deed was to
be considered not alone, but in connection with a certain other
agreement between the parties thereto, which was also introduced in
evidence, and that when so considered, it showed that title to the
lands embraced in it did not pass to De Witt until October 1, 1870.
Plaintiff's oral evidence on this point was also to the same
effect.
So far as the record shows, there was no serious dispute between
the parties as to the cutting down, removal, and appropriation of
the timber complained of, or as to the amount and value thereof, or
as to the fact that all of the alleged trespasses had been
committed within a certain boundary marked by a line of trees
blazed and painted white, known as the "Painted Line," which was
claimed to have been established by consent of the parties.
It also appears from the record that the hemlock northeast
corner tree called for in the George Moore return of survey was
identical with the hemlock northeast corner called for by the
Andrew Tybout return of survey, and that the said surveys, by
running from this common corner, according to their respective
returns, would overlap and include within the same boundaries about
325 acres, being the tract on which the cutting, etc., complained
of occurred.
The first and decisive question is who owned this overlapped
land at the time the timber was cut -- the plaintiff, who holds
title to the Moore warrant and survey of 1792, or the defendant,
holding title under the Tybout warrant and survey of 1794? As we
have seen, it was clearly established that the adjoinders to the
location on the ground corresponded
Page 129 U. S. 695
exactly with the adjoinders named in the official return, so
that the latter was a photograph of the former. It was also proved
that the hemlock northeast corner, called for in the Moore survey,
was identified; that that hemlock was the northwest corner called
for in the Henry Betz return of survey, which adjoined the George
Moore survey on the east for about two-thirds of the length of its
line, and was separated therefrom by an old line marked as early as
1784, and remarked in 1792 and subsequent years, extending several
miles southerly; that south of the Henry Betz survey and George
Moore survey on the east is the Joseph Betz tract, and that both of
these Betz tracts were surveyed on the 4th of July, 1793, and were
returned into the land office on the 16th of April, 1794 at the
same time the return of the Moore survey was made, their location
being undisputed.
It is shown that along the southern portion of its western line
the George Moore survey is bounded on the west by a tract in the
warranty name of Robert Irwin, surveyed November 22, 1792, and
returned into the land office the same day as the Moore survey.
This Irwin tract was a part of a large body of lands known as the
"General Brodhead Lands," whose eastern line extended southerly,
identified by the surveyors by marks bearing date 1792, and that on
the south the George Moore adjoins the Samuel Cooley survey, whose
location is not disputed.
We concur with the circuit court that the Moore survey, if
located according to its calls as made in the official return in
the land office, would include within its limits the tract where
the timber was cut by the defendant and its agents. The question
then is presented why should it not be located according to these
calls? That the Moore warrant is older than the Tybout warrant is
indisputable; that it was regularly and legally granted on the 24th
of April, 1792, to Moore, is not questioned, and that it was
legally surveyed in the same year appears on the face of the
official return, duly certified. All the presumptions favor the
regularity, fairness, and legality of a survey thus authenticated.
The calls for adjoining surveys are regarded by the law of
Pennsylvania as high and important evidence in determining the true
location
Page 129 U. S. 696
of a survey superior in character to the courses and distances
therein described, and next in conclusiveness to living monuments
and original marks upon the ground. Upon what ground, then, can it
be contended that the adjoining surveys, a living monument, and
many of the marks upon the ground, called for in the official
return, should not determine the location of the George Moore
survey? The only conceivable ground is the one asserted by the
defendant below, that there was, as matter of fact, no such actual
survey as the one exhibited in the official return; that, in other
words, the Moore warrant was never actually surveyed on the ground
according to its return of survey. In support of this contention,
the defendant offered evidence to show that the official return was
a chamber location, never having been made in fact. The evidence
was rejected by the court upon the ground, as stated in its charge
to the jury, that
"an old survey like that of the George Moore cannot be
questioned at this late day by any parties claiming under a junior
title, whether that title took its origin within twenty or
twenty-one years of the older survey or after that time."
This action and ruling form the basis of numerous assignments of
error. We think the court did not err either in rejecting the
testimony or in the charge. Many of the authorities cited by the
counsel for plaintiff in error, carefully examined, support the
principle laid down by the court with reference to chamber surveys
in Pennsylvania.
At an early day in that state, great abuses crept into the
administration of its land office system growing out of the illegal
acts of the surveyors, who, instead of going into the field and
establishing the lines and marking corners upon the ground, would
make drafts on paper of pretended surveys and return them into the
land office as duly certified. These false, fraudulent pretenses of
surveys never made were called "chamber surveys." Owing to the
confusion and uncertainty of titles arising from the numerous
patents issued and the large quantities of land purchased in good
faith under these fabricated surveys, the courts found it
expedient, for the common good and the promotion of peace and quiet
in the community, to hold that when a warrant was returned as
regularly surveyed,
Page 129 U. S. 697
and this official return allowed to remain unchallenged for
twenty-one years, it was strong presumptive evidence of the
regularity and legality of the survey. Many of the earlier
decisions in Pennsylvania, cited by the counsel for plaintiff in
error, held this presumption to be
prima facie only, and
subject to rebutting proofs. But the later adjudications are in
harmony with the doctrine announced by the circuit court. Such was
the decision of the supreme court in the case of
Packer v.
Schraeder Mining and Manufacturing Company, 97 Penn.St.
379.
There is nothing in the case of
Clement v. Packer,
125 U. S. 309,
contrary to this view. The decision in that case had no application
to the subject of chamber surveys. The controversy arose as to the
location of one line of a tract, the actual survey of which was
admitted and insisted on by both parties. The only question was as
to the true mode of ascertaining the location of the disputed line,
the plaintiff below contending that the survey as marked upon the
ground would properly define its position, while the defendant
contended that the location should be determined by the courses and
distances described in the survey, disregarding the marks called
for and said to be found on the ground.
The court decided that the true mode of ascertaining the lines
of a survey was to run them according to the marks and monuments on
the ground made by the surveyor at the time of the survey, along
with the lines and distances in the official return, when these
latter corresponded with such marks and monuments, but in case of a
conflict and variance, the original marks and monuments were to
prevail and determine the location of the line in dispute. It also
held that, after the lapse of twenty-one years from the return of a
survey, the presumption is that the warrant was located as returned
by the surveyor of the land office, and that, in the absence of
rebutting facts, the official courses and distances will determine
the location of the disputed line or corner, but that this
presumption is not conclusive, and may be rebutted by the proof of
original marks and monuments tending to show that the actual
location on the ground was different from the official
Page 129 U. S. 698
courses and distances. The whole issue in the case was as to the
relative weight to be attached to these two classes of evidence in
case of a discrepancy between them, and whether the period of
prescription could be invoked in behalf of the one class as
conclusive against the other. The contention, as in this case, that
no survey was actually made and that the official return of the
survey relied on was a chamber survey, presents a different
question, and involves the application of a different principle,
and it may now be regarded as settled by the latest adjudications
of the Supreme Court of Pennsylvania that, after a survey has been
returned more than twenty-one years, the presumption that it has
been actually and legally made is conclusive and cannot be
controverted by a party claiming under a junior survey.
The specifications of error from eight to fifteen inclusive are
based upon the charge of the circuit justice with reference to the
alleged consent of Jacob De Witt, the agent of Packer, to the
establishment of what is known as the "Painted Line," up to which
it was understood that the Schraeder Company might cut the
timber.
The court charged the jury that the evidence relating to this
painted line and to the assent given to it by De Witt, and
afterwards approved by Packer, could have no influence on the
question of title under the plea of
liberum tenementum;
that the assent was given not to settle a dispute but to acquiesce
in the running of a line about which no dispute had then arisen,
and upon the supposition that the person engaged in running it knew
where the true lines were; that it was an acquiescence resulting
from a pure mistake and error, which should not bind the plaintiff
or estop him from claiming his rights when he discovered the
mistake. We think the court in its charge brought out clearly and
fairly before the jury the distinction between a mutual undertaking
to adjust and settle a doubtful and disputed dividing line in case
of conflicting titles, on the one hand, and, on the other, the
consent of parties to market a boundary supposed to run between
undisputed tracts, but in ignorance and mistake of both as to the
existence of any conflict.
Page 129 U. S. 699
Upon the claim of the plaintiff in error that the consent of
Packer to the running of the painted line amounted to a leave and
license to cut the timber up to that line, the court charged that
the adoption of a boundary line by mistake had no element of
license in it, and does not necessarily indicate intention on the
part of either Packer to give, or of the Schraeder Company to
receive, a license to cut and appropriate timber on Packer's
lands.
We cannot discover any error in this part of the charge to the
jury.
The Pennsylvania decisions cited by counsel in support of the
assignments of error vary very much from the case at bar. Most of
them are cases in which the boundary was agreed upon as a
settlement of a dispute. In the others, the party setting up the
estoppel had been misled as to a material fact by the false or
mistaken representation of the party making a claim inconsistent
with such representation. In the case of
Perkins v. Gay, 3
S. & R. 327, 331, the remarks of Mr. Justice Gibson, quoted by
plaintiff in error, apply expressly and solely to "a settlement of
a disputed right." In the next paragraph, he says:
"If the parties, from misapprehension, adjust their fences and
exercise acts of ownership in conformity with a line which turns
out not to be the true boundary, or permission be ignorantly given
to place a fence on the land of the party, this will not amount to
an agreement, or be binding as the assent of the parties, and I
agree it is a principle of equity that the parties to an agreement
must be acquainted with the extent of their rights, and the nature
of the information they can call for respecting them, else they
will not be bound. The reason is that they proceed under an idea
that the fact which is the inducement to the agreement is in a
particular way, and give their assent not absolutely, but on
conditions that are falsified by the event,"
citing
Turner v. Turner, 2 Rep. in Ch. 81;
Bingham
v. Bingham, 1 Ves.Sen. 126;
Gee v. Spenser, 1 Vern.
32;
Pusey v. Desbouvrie, 3 P.Wms. 316.
The decisions in the other states generally support the rule
that owners of adjacent tracts of land are not bound by consent
Page 129 U. S. 700
to a boundary which has been defined under a mistaken
apprehension that it is the true line, each claiming only the true
line, wherever it may be found, and that in such case neither party
is precluded or estopped from claiming his own rights under the
true one, when it is discovered; nor can such consent in an action
of trespass
quare clausum fregit, upon the theory of leave
and license given, operate as an estoppel upon the claim of a
plaintiff to recover damages to the extent of the value of the
timber taken, any more than it can under the plea of
liberum
tenementum divest his title to land on which the alleged
cutting and removal were committed.
There remain three other assignments of error not yet disposed
of, which do not call for any extended notice. First, in relation
to the refusal of the circuit court to remand this cause to the
state court in which it originated. The reply to this is the
petition for removal into the circuit court was filed before the
final hearing of the case, and therefore in time.
Hess v.
Reynolds, 113 U. S. 73.
Second, as to the alleged refusal of the court to allow the
defendant to plead the statute of limitations. The record shows no
such order. The sixteenth and seventeenth assignments of error,
relating to the time to which plaintiff was entitled to claim
damages, are fully covered by the charge of the court that the
plaintiff, if entitled to recover at all, was entitled to recover
damages for all cutting and carrying away of timber from the
disputed premises up to the time he actually sold, etc.
The judgment of the circuit court is
Affirmed.