author: Mr. Justice Paxson

text:
    Jackson et al. versus Stoetzel.
    1. The usual way of seating wild, lands is first, hy residence, and second, by cultivation, in such a manner as to indicate permanent occupation. Where however, land is not capable of residence or cultivation, it may be seated by the derivation of profits therefrom by the owner.
    2. To enable a mere trespasser to seat a tract of land by enjoyment of profits, a permanent use of the land is necessary. A mere digging of coals in the winter, with an abandonment of the property for the rest of the year, is not sufficient and will not invalidate a sale for taxes.
    June 13th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Siiarswood, J., absent.
    Error to the Court of Common Pleas of Columbia county: Of May Term 1878, No. 62.
    Ejectment by John A. Jackson and Elizabeth his wife, in right of said wife; Charles D. Herron and Jane, his wife, in right of said wife; Charles J. Tower and Robert M. Cummings against Eli Stoetzel, for a tract of land in Conyngham township, Columbia county.
    The material facts are stated in the opinion of this court.
    At the trial the plaintiff submitted the following points, to which the answer of the court, El well, P. J., is appended.
    7. That the occupancy of a tract of land unfit for residence and cultivation, by the erection of buildings thereon, and the opening of a coal mine, and the mining of coal, the construction of a road to the premises, and the sale of coal to the amount of at least a hundred tons per annum, to the public in the neighborhood, during a period of fifty years, covering the years for which the tax sales were made, is such a seating of the tract of land as would invalidate a sale for taxes; and also,
    8. That, if the jury believe the evidence of John Kline, that he went on the land, nearly fifty years ago, making a claim on it, begun to take out coal, erected buildings thereon, continued regularly thereafter to mine coal, and maintained possession to about 1860, also paying all taxes on the land demanded of him, after which last date the land in dispute was occupied by the lessees of the defendant, then the land was not subject to a tax sale, and no title was acquired by the purchaser.
    Ans. “If John Kline had been the owner of this property, if he had had any color of title to it, then I would hold that the character of the occupancy stated by him and the other witnesses would be sufficient to the making of a seated tract; but, as I look upon the evidence, his entries from year to year and time to time were but so many repeated trespasses; he had no occupancy that would have given him a title under the Statute of Limitations as against the Tower heirs. * * * And, although by the authority of 5 P. E. Smith, in Fellows & Co., if Kline had been assessed with taxes he might perhaps have been compelled to pay them — possibly personally an assessment might have been collected — nevertheless, that of itself would not render the tract a seated tract.”
    The defendant, among others, submitted the following point, which the court affirmed.
    That thé evidence of the plaintiffs upon the possession and use of the land of John Kline and others is not sufficient to establish a seating of the land at any time, and particularly not during the years and at the times assessments were made on which the tax sales were had.
    The verdict was for defendant, and after judgment the plaintiffs took this writ; their sixth and seventh assignments of error being respectively to the above points.

      John G- Freeze and A. J. Dietrich, for plaintiffs in error.
    A tract of wild land becomes seated whenever it is so far occupied as to make the owners or occupants personally chargeable with the taxes; and the character of the occupancy rendering the owners or occupants liable is when the owner or occupant enters upon the tract with the intention to improve it and derive profit from it: Sheaffer v. McKabe, 2 Watts 421; Kennedy v. Daily, 6 Id. 272; Foster v. McDivit, 9 Id. 341; Ellis v. Hall, 7 Harris 292; Rosenburger v. Schull, 7 Watts 393; Greenough v. Fulton Coal Co., 24 P. F. Smith 496. An entry upon an unseated tract of land by any one, whether as an intruder or under the title of the owner, either for the purpose of residence or for cultivation, makes the tract seated and prevents a sale for taxes : Campbell v. Wilson, 1 Watts 504; Sheaffer v. McKabe, 2 Id. 421; Kennedy v. Daily, 6 Id. 269 ; Rosenburger v. Schull, 7 Id. 393; Mitchell v. Bratton, 5 W. & S. 451; Wallace v. Scott, 7 Id. 245; Wilson v. Watterson, 4 Barr 214; Jackson v. Sassaman, 5 Casey 112; Lackawanna Iron Co., v. Fales, 5 P. E. Smith 90; Jackson v. Flesher, 1 Grant 459; Greenough v. The Fulton Coal Co., 24 P. F. Smith 486. The court should have left the question whether the land was seated or not to the jury: Rosenburger v. Schull, 7 Watts 393.

      George F. Baer and O. B. Buchalew, for defendant in error.—
    The use of the land by Kline and others, was at no time anything else than a series of trespasses, and the structures which he placed upon the land, were plainly intended solely for temporary purposes. During the years for whose taxes the lands were sold, it is difficult to say that he maintained even this character of possession. Land only ceases to be unseated when it is actually occupied with a view to permanent use as the property of the occupant: Wallace v. Scott, 7 W. & S. 249. Actual residence indeed is not indispensable where profits are derived from the land, but the occupancy must still be with a view to permanent ownership, and the improvements made in such a way as to furnish upon the land, the means of making and levying the taxes by distress, and arresting the attention of the assessor so as to require him to return it seated: Greenough v. Fulton Coal Co., 24 P. F. Smith 496; McArthur v. Kitchen, 27 Id. 62 ; Kennedy v. Daily, 6 Watts 272 ; Scheaffer v. McKabe, 2 Id. 421; Foster v. McDivit, 9 Id. 341; Rosenburger v. Schull, 7 Id. 393 ; Wallace v. Scott, 7 W. & S. 248 ; Jackson v. Sassaman, 5 Casey 106 ; Jackson v. Flesher, 1 Grant 459. In Campbell v. Wilson, 1 Watts 503, intention of permanent occupancy was shown by actual residence, and in Biddle v. Noble, 18 P. F. Smith 279, and Mitchell v. Bratton, 5 W. & S. 451, by the fixing of boundaries designated by the actual marks on the ground.
    June 25th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

This was an action of ejectment to recover the possession of four hundred and forty-one acres of land, known as the Ebenezer Bran-ham tract. The plaintiffs showed that the legal title from the Commonwealth was vested in them. The defendant was in possession, and claimed title by virtue of three tax-sales. The only material question in the case is, whether the land was unseated at the time of the tax-sale in 1854. It was sold at that time for the taxes assessed for 1851 and 1852. The tract was assessed as unseated. The plaintiffs called a number of witnesses for the purpose of showing that it Avas seated. The court beloAv, in answer to the 7th and 8th points of plaintiffs, and the 1st point of defendant, charged the jury that the evidence Avas not sufficient to seat the tract. This ruling forms the subject of the 6th and 7th assignments of error.

The facts testified to by the plaintiff’s Avitnesses are substantially as follows: About fifty years ago one John Kline entered upon the tract and opened a coal mine. About the same time he constructed a shanty as a shelter for the men. The vein proved faulty, and at this point was abandoned, as Avas also the shanty.. The latter Avas aftenvards destroyed. Some time subsequently, but'hoAv long the evidence does not disclose, Kline made another opening on the same tract about three-quarters of a mile from the first one, and commenced taking out coal. Another log shanty, 8X17, was put up •as a shelter for the men. Later a second shanty Avas put up for sleeping in, 12x16, covered with boards, and the first shanty Avas Rsed as a stable, Avhere, the evidence shoAvs, a single horse or mule were kept á portion of the time. Neither of the cabins Avas ever used as a residence; one of the Avitnesses says: “Nobody could live there the way the shanty Avas.” No one ever lived on the tract. The men came there on Monday and returned to their homes the last of the week. The coal that was taken out Avas exclusively for the farmers and neighbors ; none of it Avas ever shipped to market. The highest amount taken out in a year appears to have been about 100 tons. The opening was small; the neighboring farmers took but coal there, although the mine was originally opened by Kline and was called Kline’s mine. Kline, however, had no title, nor even a color of right. He makes no such claim in his testimony. He does say that the first shanty was built “for an improvement, and to make an application,” as well as for a shelter for his men. This was never followed up, and the shanty was abandoned soon after its erection, as has been before stated. After Kline quit working the mine he leased it to several other parties successively, who appear to have worked it in the same manner and to the same extent. What rent he was to get does not appear. On one occasion he received $15 as his share of the coal.

The mining was done mostly in the winter. Some work was done in the fall or late in the summer.

Are these facts sufficient to seat the tract ? There are two modes by which wild lands are usually seated, viz.: 1. By residing on the land; and 2. By cultivation in such manner as to indicate a permanent occupation of it. And residence or cultivation of the character indicated, even by an intruder, is sufficient. Nothing is better settled than this, that an entry upon an unseated tract of land by any one, whether as an intruder or under the title of the owner, either for the purpose of residence or for cultivation, makes the tract seated and prevents a sale for taxes: Biddle v. Noble, 18 P. F. Smith 279; Campbell v. Wilson, 1 Watts 504; Shaeffer v. McKabe, 2 Id. 421; Kennedy v. Daily, 6 Id. 269; Rosenberger v. Schull, 7 Id. 390; Mitchell v. Bratton, 5 W. & S. 451; Wallace v. Scott, 7 Id. 248; Wilson v. Watterson, 4 Barr 214; Jackson v. Sassaman, 5 Casey 112; Lackawanna Iron Co. v. Fales, 5 P. F. Smith 90 ; Jackson v. Flesher, 1 Grant 459; Greenough v. The Fulton Coal Co., 24 P. F. Smith 486. In some instances land may be seated without either residence or cultivation. This must be so or some lands could never be seated, as they are unsuited to a residence and incapable of cultivation, yet possessing value for their mineral deposits. It has therefore been said that where the owner derives a profit from the land it cannot be said to be unseated. This principle appears to have been recognised in Stokely v. Boner, 10 S. & R. 254 ; Harberson v. Jack, 2 Watts 125; Kennedy v. Daily, 6 Id. 269. In the cases referred to the word profits was evidently used as the equivalent for cultivation, as it was manifestly profits from cultivation that was in the mind of the court. In the later case of Lackawanna Iron Co. v. Fales, 5 P. F. Smith 90, the jury were instructed by the late Judge Conyngham that “ a tract may become seated without permanent residence and without cultivation through the raising of grain and crops, either of which would clearly make it seated. Some tracts may be entirely unfitted for cultivation, or for a permanent dwelling-place, and yet they may become seated by a personal use of them in the only way in which they can be used.” This, with other portions of the charge, was assigned for error in this court and affirmed.

It is manifest this tract was not seated by either residence or cultivation. It would only be seated, if seated at all, by the acts of Kline and the neighbors and farmers taking out a limited supply of coal for domestic purposes for a series of years. It may be that if the owner had used the land as it was used by Kline, it would have seated the tract. But to enable a mere trespasser to seat a tract by enjoyment of profits, a permanent use of the land is necessary. A mere digging of coal in the winter, with an abandonment of the property during the rest of the season, would not be sufficient. The entry of Kline each season was, as was well said by the learned judge below, merely repeated trespasses. There is nothing to show that he entered under color of title or claim of ownership, and with a view to a permanent occupation of the property, which were held to be essential in the Lackawanna Iron Co. v. Fales, supra. Suppose Kline and the neighbors who took the coal had resorted to the tract each winter for their supply of fire-wood, that Kline had erected a shanty for the choppers to sleep in and to protect them from the rain, and had kept a few cords on hand for sale, can it be said that this act of trespass, however frequently repeated, would have seated the tract? Yet in what essential feature does it differ from the case in hand? If a tract is to be seated by such evidence as this, I am unable to see why wild land may not be seated by burning charcoal on it each winter for fifty years, or by a sugar camp in the spring, provided anything in the shape of a cabin is erected to keep off the rain. The distinction between the effect of acts by an owner and by an intruder, was clearly pointed out by the learned judge of the court below in his answer to the defendant’s point. He said : “ If John Kline had been the owner, if he had had any color of title to it, then I would hold that the character of the occupancy stated by him and the other witnesses, would be sufficient to the making of a seated tract.” This distinction is also recognised in Lackawanna Iron Co. v. Fales, where it was said of a trespasser by the court below and affirmed here: “ we say it must be the going on under color of title, with an evident claim of ownership, and a view to a permanent occupation of the property, and occupying and using it continuously in the way its capabilities render it apparently most proper, that will make it seated.” There was nothing upon this tract to indicate its permanent use by any one. There were no operations of any kind carried on there during the greater part of the year. There were no general works ; no colliery; no tenant-houses — nothing but a hole in the ground, out of which the neighbors took coal, which they knew did not belong to them, and a mis erable shanty, unfit for occupation as a residence, and which was used only as a shelter for the men at night for a portion of the year. We think the court below was right in holding that the evidence was insufficient to seat the tract. The facts not being disputed, it was for the court to pass upon their effect. The remaining assignments need not be discussed. They disclose no error.

Judgment affirmed.

Chief Justice Agnew filed a dissenting opinion.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Cake versus Philadelphia and Erie Railroad Co.
    1. No right of appeal, from an award of viewers to appraise damages, was given to either party, under the charter of the Philadelphia and Erie Railroad Company and its supplements.
    2. It was not until the Act of April 14th 1864, that the legislature authorized the taking of a public street or alley for the use of the ¡Philadelphia and Erie Railroad Company, and made provision for damages resulting therefrom.
    3. The word “property,” in the Act of July 22d 1864, does not include public highways.
    June 14th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Northumberland county: Of May Term 1878, No. 192.
    The proceedings arose as follows: Joseph W. Cake was the owner of a tract of land adjoining the town of Sunbury, and laid out a portion of it in town lots and alleys, and had a draft of the same made on which the streets were named. A number of these lots were sold, and Ilenry L. Cake, the plaintiff, became the purchaser of thirteen, which constituted a square, bounded on the east by an alley twenty-five feet wide. Each lot was twenty-five feet wide, and extended back from Railroad avenue one hundred and twenty-five feet to this alley. In 1866 the plaintiff built on this square five blocks of two houses each, fronting on Railroad avenue. In 1870 the Philadelphia and Erie Railroad Company needing an additional siding, constructed it upon and along the twenty-five feet alley, by making an embankment upon it from four to seven feet high, where the east side of the square owned by the plaintiff fronts upon the alley, and thereby completely obstructed the said alley and prevented all passage along it, by dr to the said lots. Before and ever since the defendant constructed this embankment and siding, the said alley and the plaintiff’s square of lots were in the borough of Sunbury. By the Act of April 3d 1837, Pamph. L. 170, incorporating the defendant company, they were required to construct their railroad so as not to impede or obstruct the free use and passage of any public road which might cross or enter the same; but in case the railroad should cross or interfere with any existing public road, then the railroad was required to make a good and sufficient causeway or bridge.

      By sect. 5 of the supplement to this act, which was enacted March 27th 1852, the company obtained the right to change the site of a public road, where necessary, and was required to reconstruct the same in as perfect a manner as the original road, and to pay the damages resulting from the change of location.
    By the Act of April 14th 1864, the tenth and eleventh sections of the General Railroad Law of February 19th 1849, were extended to this company, whereby it was allowed to occupy a street or alley, provided it made compensation to owners of adjoining property for damages occasioned by excavations or embankments.
    The Act of July 22d 1864, provided: “That it shall and may be lawful for the Philadelphia and Erie Railroad Company to take and appropriate such property, however occupied, as they may deem expedient for the use and construction of depots, sidings, turn-outs, water-ways, work-shops and other improvements along or immediately connected with their line, that may in their opinion be needful for the prosecution of the business to be done on the said Philadelphia and Erie Railroad. Provided always, that the full amount to be paid for the property so taken shall be assessed, paid for or secured, as provided by the charter of the Philadelphia and Erie Railroad Company, and all laws inconsistent herewith be and the same are hereby repealed.”
    Under the provisions of the Act of April 14th 1864, viewers were appointed to assess the damages to the property of Cake, who awarded him $5600.
    The company appealed, and the plaintiff took a rule to show cause why the appeal should not be stricken off, contending that it should be, “because neither of the provisions of the.Act of Assembly, approved the 3d day of April 1837, entitled ‘An Act to incorporate the Sunbury and Erie and Pittsburgh and Susquehanna Railroad Companies,’ in Pamph. L. 1836, 1837, pp. 170-185, by virtue of which the said The Philadelphia and Erie Railroad Company was incorporated, nor of any supplements thereto subsequently passed, nor of the tenth and eleventh sections of the Act of Assembly, approved the 19th day of February 1849, entitled ‘ An Act regulating railroads,’ which were extended’to the said The Philadelphia and Erie Railroad Company by an Act of Assembly approved the 14th day of April 1864, entitled ‘An Act relating to the Philadelphia and-Erie Railroad,’ in Pamph. L. 1864, p. 414, nor of any other Act of Assembly of the Commonwealth of Pennsylvania, give an appeal from the report of viewers appointed to assess damages arising from the construction of the railroad of the said The Philadelphia and Erie Railroad Company, and therefore because the .court-has no jurisdiction of the said appeal from the said report of the said viewers.”
    This rule the court discharged, and at the trial the company contended that it had never accepted the provisions of the Act of April 14th 1864, and that if it had, said act was repealed by the Act of July 22d 1864.
    In the general charge, the court, Rockefeller, P. J., inter alia, said:
    “ It (Act of April 14th 1864) is a special act relating to the Philadelphia and Erie Railroad Company, aind, in my judgment, the weight of reason, and certainly the weight of authority, is that the legislature had no power to enact it without the consent or assent of the railroad company. If the act had been accepted or assented to by the company it would be binding upon them, and if there was any evidence in the case from which you could infer that the company ever assented to the passage of this law, or accepted its provisions, then the court would permit you to make such an inference. I do not know of any evidence in the case whatever, that has a tendency to show that the railroad company ever assented or consented to the passage of this act, or ever accepted any of its provisions after it was passed, and the officers of the company for the time being, whose depositions you heard read, swear that this act never was accepted by the railroad company. * * *
    “ This being our view of this case, we instruct you, as a matter of law, that your verdict must be in favor of the defendant.”
    After a verdict in accordance with this instruction, the appellant took this writ, assigning for error, inter alia, the refusal to strike off the appeal and the portion of the charge noted above.

      J. A. Qake and Joshua W. Oomly, for plaintiff in error.
    If the Act of Assembly of the 14th of April 1864, is unconstitutional and void, the court below erred in not striking off the appeal from the report of viewers. No Act of Assembly was shown authorizing an appeal, and it was not alleged that any existed. The jurisdiction of the court to take cognisance of the cause depended upon the question, whether the Act of April 14th 1864, extended the eleventh section of the Act of 19th February 1849, to the defendant, and if it did not, there was no pretence to the right of appeal.
    The contention of the counsel for the company is, that the words “ such property, however occupied,” in the Act of July 22d 1864, included streets and alleys, and justified the construction of the siding on the alley in question, and that as no part of the embankment extended upon the lots of this plaintiff, he had no claim for damages. If this is the correct construction of this act, it necessarily follows that the company have the right to take and appropriate any streets, alleys, pavements, sidewalks or public roads in Sunbury or Erie, or in any other city, borough, village or township from Sunbury to Erie, which lies, “along or immediately connected with their line,, and erect thereon such depots, sidings, turnouts, water-ways, workshops and other improvements,” as they may may deem expedient.

      It is unreasonable to suppose that the legislature intended a grant, the exercise of which would produce results so injurious to the public. Such grants must be construed strictly in favor of the public: Packer v. Sunbury v. Erie Railroad Co., 7 Harris 211; Commonwealth v. Central Passenger Railway, 2 P. F. Smith 506; Johnson v. Philadelphia, 10 Id. 445. Nor is there any provision in the charter of the defendant for the assessment of the value of any part of any highway taken for railroad purposes, or for the payment of such value to any person. The Act of April 14th 1864, did not impair any contract between the state and the company and was constitutional: Erie & North East Railroad Company v. Casey, 2 Casey 287.

      S. T. Beardsley, William O. Packer and J. B. Packer, for defendant in error.
    It ought to be regarded as settled in Pennsylvania that the legislature may authorize the location and construction of a railroad upon a public street or highway: Commonwealth v. Erie & N. E. Railroad Co., 3 Casey 354; Mercer et al. v. Pittsburgh, Fort Wayne & Chicago Railroad Co., 12 Id. 99; Faust et al. v. The Passenger Railway Co., 3 Phila. Rep. 166; Yost v. Philadelphia & Reading Railroad Co., 29 Leg. Int. 85; Danville, Hazleton & Wilkesbarre Railroad Co. v. The Commonwealth, 23 P. F. Smith 38. The charter of the company authorized it to lay down as many tracks as they may deem necessary. This implied the right to construct sidings, and included the right to take public streets, although not so stated in express terms. The damages were consequential, and the company was not responsible therefor: Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Henry v. Pittsburgh & Allegheny Bridge Co., 8 Id. 85; Monongahela Navigation Co. v. Coon, 6 Barr 382; Reitenbaugh v. Chester Valley Railroad Co., 9 Harris 100; Faust et al. v. Passenger Railway Co., supra; Watson v. The Pittsburgh & Connellsville Railroad Co., 1 Wright 479; Snyder v. Pennsylvania Railroad Co., 5 P. F. Smith 340; Green v. Borough of Reading, 9 Watts 382; O’Connor v. Pittsburgh, 6 Harris 187; Clarke v. Birmingham & Pittsburgh Bridge Co., 5 Wright 147. It was not within the constitutional power of the legislature to impose such a liability as that contained in the Act of 14th April 1864, and that act is, therefore, unconstitutional and void: Pennsylvania Railroad Co. v. Riblet, 16 P. F. Smith 164; City of Erie v. Erie Canal Co., 9 Id. 174; Monongahela Navigation Co. v. Coons, supra; Bank of Pennsylvania v. Commonwealth, 7 Harris 151; Brown v. Hummel, 6 Barr 92; Iron City Bank v. Pittsburgh, 1 Wright 340. The company never accepted the Act of April 14th 1864, and is not bound by its provisions: Hays v. Commonwealth, 1 Norris 522; Ahl v. Rhoads, 3 Id. 325; Green v. Biddle, 8 Wheat. 1. If said act was valid, it was repealed by the Act of July 22d 1864.

      The right of appeal existed under the Acts of 19th February 1849, 27th April 1855, and April 9th 1856.. The tenth and eleventh sections of the Act of February 1849 were extended to the company by the Act of April 14th 1864, and included the right of appeal. The latter act may be considered as incorporated with the former: Dwarris on Statutes 189. The plaintiff sought redress under the provisions of the Act of 1849, and he must necessarily take with the privileges thereunder the conditions annexed thereto, which include the right of appeal.
    June 25th 1878.
   Mr. Justice Trunkey

delivered the opinion of the court,

Among the privileges granted by Act of April 3d 1837 was not that of appropriating a public highway. Section 5 of the supplement of March 27th 1852 gave the right to change the site of a turnpike or public road, when necessary, and required the company to reconstruct the same in as perfect a manner as the original road, and pay the damages caused by change of location. Not till 1864 did the legislature authorize the taking of a street or alley in a city or borough for the use of this corporation. In that year two acts were passed, one extending the tenth and eleventh sections of the Act of February 19th 1849 to the Philadelphia and Erie Bail-road, the other giving power to the “company to take and appropriate such property, however occupied, as they may deem expedient, for the use and construction of depots, sidings, turnouts, water-ways, workshops and other improvements along or immediately connected with their line, that may, in their opinion, be needful for the prosecution of the business to be done on said Philadelphia and Erie Bailroad.” The latter, approved July 22d, does not repeal the former, unless the two are inconsistent or repugnant.

It is urged that “property,” in the Act of July 22d 1864, includes public highways. The course of previous legislation for this -railroad does not show that such was the int'ent, but rather induces belief that private property only is within this supplement. Under the Act of 1837, when the company crossed a public way, it was required to construct and maintain a causeway or bridge; under the Act of 1852, when it takes a turnpike or public road, it is bound to make another as good; and if, under the Act of January 14th 1864, it should occupy a street or alley, it will be liable for ample compensation to owners of adjoining lots for damages caused by excavation or embankment. All legislation for this defendant contemplates payment of full damages for property taken. This is noticeable in the proviso to the Act of July 1864. Yet if that act confers the right to Jake streets and alleys in cities and boroughs, a principal street may be destroyed for all use except for the railroad, the public greatly injured, owners of lots and buildings’ deprived of the means of ingress and egress, and the company not be liable for a dollar toward compensation for the ruin. The literal meaning of the phrase “property, however occupied” does hot stop with streets, but includes cemeteries, county and city grounds and buildings, and everything else which the company, in its opinion, may deem expedient to take. Possessed of no such powers when constructing the main line, the interpretation asked for this act would leave no place sacred from appropriation for its turnouts and workshops. By all authority no lax construction of grants to corporations is required against public interest and individual rights. The Act of July 22d enlarges the grant by Act of January 14th in a number of respects, such as authorizing the company to take places of public worship and dwelling-houses without the owner’s consent for its sidings, depots and the like. It may be reasonably construed as enacted for this ■purpose. No presumption can'be made that the legislature purposely transcended their authority; and even if the Act of January 14th was not binding on the company, without its acceptance, it may be considered in ascertaining the intendment of the later act. We are of opinion that the right to take streets and alleys in cities and boroughs, for the use of the company, is not given by the Act of July 22d 1864.

The Act of January 14th 1864, is to be considered precisely as if the tenth and eleventh sections of the Act of 1849 were copied therein at length. If accepted by the company it became a part of its charter, as did other supplements to the Act of 1837. Extending a part of the general statutes to the company excluded all other parts. “The naming of one is an exclusion of the other.” The charter gave no right of appeal from an award of viewers to appraise 'damages. The proceedings in this case were before the Act of June 13th 1874, Pamph. L. 283, and are unaffected by it.

The company took, appropriated and are still using the street. The plaintiff instituted proceedings for appraisement of damages, as provided by Act of January 14th 1864. Perhaps the company had its option to refuse the tenth section as unconstitutional and invalid, or to accept it. Perhaps the eleventh section, relating to remedy, was valid without acceptance. As we view this cause these questions need no discussion. The parties do not claim that the street was unlawfully taken by the company, nor -that its occupation has been a continuous nuisance. Each puts the case on the basis that the street was rightfully appropriated. Neither interest nor policy induces the one to say it took and keeps without right, and there is little motive for the other to bring an action which could be successfully answered by the statute. In making the embankment in the street, the company became liable for damages, and the person entitled pursued the prescribed remedy. If there was no cause for setting aside the award of viewers it was final as to both. Exceptions were filed by the company and, after argument, were disallowed by the court. That adjudication is not here for review. No right of appeal was given to either party, and the first assignment of error is well taken.

Judgment reversed, and the appeal from report of viewers is stricken off. The record ordered to be remitted for ■ further proceedings.


author: Chief Justice Agnew

text:
    Sugar Valley Lumbering Co. versus Phineas M. Barber et al.

    1. A block survey, where all the surveys were owned by one owner, was returned to contain thirty-nine tracts, but with room for only thirty-six whole tracts. In the block, two of the tracts and a part of a third had no land, but where the loss should fall was uncertain under the evidence. The court below held, that in the absence of evidence to indicate a better rule, the preference should be given to the older survey. Held, reversing the court below, that this was error, and that a better rule to govern the determination of the question was that of actual location, as ascertained by calls from other tracts of the same block of surveys, which are fixed by established marks and monuments on the ground of said tracts.
    2. Per Agnew, C. -J. The rule of dates laid down in the court below is not applicable. In a block survey, where the owner of the block owns all the surveys, which are bounded by paper lines, and he sells in no legal order of succession, it is plain the date rule is without meaning; possibly there may be a case where it must be resorted to in a block of surveys; but its true place is in separate surveys for different owners, where priority of survey necessarily gives title.
    June 6th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 106.
    Ejectment by the Sugar Valley Lumbering Company against Phineas M. Barber and others.
    The plaintiffs in this action sought to recover possession of a tract of land surveyed upon a warrant dated April 12th 1794, granted in the name of John Wester, which was one of thirty-nine warrants, all of the same date, surveyed in one block, from the 9th to the 16th of December 1794. These warrants were all granted upon the application of Jeremiah Parker, and the block, when surveyed and returned, belonged to him. The plaintiffs showed title to the tract in dispute by a regular chain of conveyances from the warrantee, and it was not controverted that the title to the John Wester tract was vested in the plaintiffs.
    The defendants claimed title to a tract in the warrantee name of Jacob Kriter, one of the same block of surveys, under a sale made by the treasurer of Lycoming county, on June 15th 1852, of 290 acres, part of this tract, for the unpaid taxes for the years 1850 and 1851, to George W. Youngman, under whose title thus derived they claimed to hold the premises in dispute. The tract in the name of Jacob Kriter, according to official return, contained 400 acres, and there was no evidence tending to show what part of it was assessed and sold by the treasurer to George W. Youngman. The writ alleged that the defendants were in possession of the whole of the tract in the name of John .Wester. The-defendants pleaded “not guilty,” and thus made defence against the whole of plaintiff’s claim, alleging that the Jacob Kriter tract occupied the position in the block claimed for John Wester. They did not pretend to deny the title of the plaintiffs to the tract in the name of John Wester, but contended'that the territory claimed for John Wester was in fact occupied by the tract in the name of Jacob Kriter.
    In the general charge, the court, inter alia, said:
    “The defendants have shown a legal title vested in them for the tract of land in the name of Jacob Kriter, and so far as the court understands it there is no dispute in reference to the legal title of either of the parties for those two tracts of land. The defendants are entitled to the tract of land in the name of Jacob Kriter; and the plaintiffs are entitled by their legal title to the tract of land in the name of John Wester. * * * The exterior lines which constitute the survey of the block are well marked with numerous marks standing upon -the ground, counting the date of the survey, so that the block itself is well located and limited by exterior boundaries; but, in consequence of the mistake made by the surveyor, of one mile of distance upon the northern line of the block, there is not room enough to locate all the different tracts within those boundaries. And the question is, who must give way? Who has the best right to the particular locality described in this action of ejectment? * * * Now it appears from the evidence that they have never claimed any other tracts than the two in the names of the John Triteman and Jacob Kriter, situate in the same tier, running east and west from the John Brady, in which the disputed territory is situated, and that they have lumbered upon both of those tracts, as they claim them to be located, for a number of years, and they are not shifting their claim. They are not making a new claim now in this defence, or a different claim than that they have set up for a number of years past. I think one witness stated that for eight or ten years they had been lumbering on those two tracts as they claim them to be located.
    “ Then there is no difficulty or misunderstanding about the fact that the identical piece of ground that the defendants are in possession of, and have been in possession of and occupying as owners for some time past — some years back — is the identical piece of ground that is now in controversy. * * * As the court before remarked, the first thing to which we will call your attention is the calls of the survey. The survey in the name of John Wester calls for the two Pitlong surveys on the west; for Henry Linkton on the north; for Joseph Wester on the south, and for Jacob Kriter on the east. These calls are applicable to this locality that is now in controversy upon three sides. We have the Pit-longs on the west; we have the Joseph Wester on the south; we have the Henry Linkton on the north. If Jacob Kriter is not properly located east of the John Wester, then that call would have to be disregarded. Otherwise these calls are all answered by locating the John Wester where the plaintiffs claim to locate him. The Jacob Kriter calls for the John Wester on the west, John Linkton on the north, David Kriter on the south and John Trite-man on the east. By placing the Jacob Kriter tract upon the territory in dispute you will be obliged to sacrifice at least two of those calls. You would sacrifice the call for the John Wester and the call for Jacob Kriter. The John Triteman might perhaps remain, and, I believe, as the defendants explain it, they would let the John Linkton remain. I am not very positive about that. But you would sacrifice at least two of the calls of the Jacob Kriter. Now, so far as the calls of the surveys, according to their return for each other, and for the surrounding surveys, that is about the ■way these two tracts would be affected by this location. * * * Now, the defendants’ theory is, that, commencing at the John Brady tract, and running westward along the block of surveys that run up to the John Brady, either tract, Jacob Kriter is found in the fifth tier from the John Brady. That adopting the method that the courts have recognised as the true method of ascertaining the locality of a survey, commencing at the John Brady, and following that block westward, the true location of the John Kriter is found in the fifth survey from the John Brady, including the John Brady, and as the court understands it, that would bring them upon the territory now in dispute. Now, that is a mode recognised by the law for determining the true location of any tract of land which constitutes a part of a block. The plaintiffs say — they do not gainsay that — but they say it is not conclusive; that there are other rules that are as imperative and as conclusive as the method adopted by the defendants. They claim that where the location of any one of the tracts constituting a block is established by marks upon the ground, that they can commence at that point, and locate their survey from that point with as much propriety as to commence at the leading warrant, and they give to it more potency and force, by insisting that in this particular case the James Linkton survey is located permanently by the black oak corner, that is confirmed by the surveyors, and established beyond controversy, as locating and forming the corner of the James Linkton survey. They also claim, that at the southern end of that tier, the survey in the name of James Wester is established by its call for the Martin Wester, Martin Wester being permanently fixed by the chestnut oak that is found on the ground, and the James Wester, calling for the Martin Wester, is thus established, and that thus, by establishing the surveys at each end of this tier, they thereby establish all the intermediate surveys. They have presented very strong authority for that, the opinion of the Supreme Court, as delivered by Judge Thompson, who does express that opinion. Ordinarily, we would feel bound by the opinion of the Supreme Court, and feel constrained upon this authority to rule this case accordingly. But that opinion was expressed in á case'somewhat differing from this. This case having features differing from that, and that being an expression of the.court of an opinion that was, perhaps, not necessarily involved in that case, and an opinion that, if I am permitted to say, I have not found any authority to sustain, I feel inclined, in this instance, not to be bound by it. I give you the theory, and I say to you that it is entitled to weight, because it is one of the .recognised theories by which the locality of a tract may be ascertained. Having fixed the locality of the James Linkton survey, you proceed southward, and the surveys adjoining, calling one for the other, you establish the locality by calls. As I remarked to you at the outset, if there was any living monument upon the territory in dispute, counting to the date of the survey, that would be incontestable evidence of its true locality. But when you have to resort to calls, they are not incontestable. They are evidence— evidence entitled to weight and consideration — but when they conflict — when, by pursuing that method, you are unable to come to any conclusion, from the fact that if you commence locating at one side of the survey, and locate according to calls, the result is one thing, and if you commence at the other side of the survey and locate by calls, the result is a different thing. You see that this system, this theory, is not conclusive. While it is entitled to weight and to the highest consideration, this very case proves that it cannot be conclusive, because you arrivd at different results, just depending upon where you commence. Well, when the Supreme Court says that it settles it beyond a dispute, how can it settle this controversy ? Adopting that theory, and commencing at the John Brady tract, and you establish the Kriter just where the defendants claim. Beginning at the James Linkton and adopting that theory, you establish it where the plaintiffs claim it — both following the theory that the Supreme Court says is conclusive. Now, while these different theories are entitled to consideration, and we must observe them in endeavoring to locate this tract, yet, when we follow them out, and by following them out result in a contradictory conclusion, we must conclude that they are not incontestable, that they are not wholly reliable. Now, in the contest in which that expression was made by the Supreme Court, I observe that the two surveys bore the same date precisely — stood upon a perfect equality as to date of surveys. Whether or not that. had any influence upon the Supreme Court I know not, or whether the expression made by Judge Thompson was maturely reflected' upon I know not. It may possibly be that I am wholly in error, and that it is the rule that should govern this case, but I confess that I cannot so see it, and do not feel at present inclined to be bound by it. * * * These surveys were made at different dates. I should have remarked, however, in that same connection, according to the return of survey, the territory in controversy is in the fifth tier, counting from the Brady, and according to the measurement on the ground, that would bring it up to the Pitlong surveys, leaving no ground for John Wester. If Jacob Kriter was located upon that spot; if that is the territory upon which the surveyor located the Jacob Kriter, then, in that event, there is no territory upon which the John Wester could be located. If, on the other hand, that was the territory upon which John Wester was located by the surveyor, then his return of survey is not accurate, according to the actual measurement upon the ground. * * * If you commence at the northeast, and give to the John Wester his calls, you locate him upon the territory in dispute. If you commence at the leading warrant, the John Brady, and locate the Jacob Kriter according to his calls, you locate him upon the disputed territory. Then, if you can arrive at no satisfactory conclusion from adopting either of these theories, what next should you consider ? Why, if you are satisfied, from the evidence in the cause, that the surveyor included this territory in the Jacob Kriter tract, and so returned it according to the actual measurement as ascertained on the ground, and that survey was made on the 11th of December — five days previous to any survey — having been returned as made for John Wester, the court thinks it gives priority and preference to the older survey. Now, that conclusion, is based upon the theory that these two surveys claim the same, the identical territory, and that, according to actual measurement, it is ascertained the surveyor has returned the Jacob Kriter as located upon the territory in dispute. If so, his survey preceding that of John Wester five days, the court thinks gives him a priority of right, and that he is entitled to the territory described in his warrant and return of survey. Now this is a difficult case, and one that I am by no means certain we are adjusting correctly. But, take everything into consideration, the difficulty that we have in locating these surveys from any known rules of locating surveys, and after having exhausted every method that I am aware of for locating them, and not being able to arrive at any definite result, it seems to me that the priority of survey then should preponderate in the scale, and give the title to the defendants.”
    The plaintiffs’ points, with the answers thereto, were as follows:
    1. That upon the whole evidence the plaintiffs are entitled to recover.
    Ans. “ We decline to give you such instruction as is asked for.”

      3. In this case the shape of the block will be most nearly preserved and a less number of calls be disregarded by locating the surveys according to the official return, and connection from the ■western side of the block to the eastern end of the Charles Graylington, and making the necessary correction east of the eastern corner of the Charles Graylington.
    Ans. “ That point we decline. We decline to give that instruction, a.nd in further answer to that point, I would say that, if I understand this case, to correct this entire mistake three tracts will have to be dropped or lost out of the block. There is not enough territory to supply all the tracts by three, and three will have to be dropped out if we attempt to correct the entire block. Now, whether those three tracts are stricken out of one end of the survey or the other end of the survey will make no difference, so far as the court is able to perceive, in reference to the destruction of calls. You have three tracts to obliterate, and the calls of those three tracts will all be disarranged wherever you blot them out, so that if we were necessarily blotting out three tracts here it would really make no difference to the disturbance of calls, whether we blotted them out at one end of the survey or the other, because the calls of three different tracts have to be disregarded. So I say that it would make little difference at which end we blotted them out. But we are blotting out nothing. We do not, in this case, undertake to correct the mistake made by the surveyor; we are endeavoring to ascertain where to locate the Jacob Kriter and the John Wester. Those two tracts come in collision. It seems that, so far as they are concerned, they cover the same territory. The question is, which is to have the preference. If the location of either of them could be established conclusively, beyond all doubt, that would settle the question. But, where, applying all the rules of law that have been brought to our attention for the purpose of determining the true location, we are still left in doubt, then we fall back upon the fact that one survey preceded the other five days. Upon that ground we give that survey the preference, and in doing that we disturb no other tract in the block. Let that be for future consideration and to be dependent upon the merits of each case as it is presented.
    4. There being no dispute about the location of the James Link-ton by the black oak on the northwestern corner, nor of the James Wester, these surveys locate the intermediate tracts of the tier, and fix the John Wester where the plaintiffs claimed it to be, adjoining the John Pitlong and the Adam Pitlong.
    Ans. “The facts recited in this point are evidence of the true location of the John Wester, entitled to great weight, but not conclusive, and may be counteracted by other evidence. I believe that is consistent with what the court stated, that, while we admit that the fact that the James Linkton survey was located by the black oak, and its adjoiners, all calling for it, was a circumstance entitled to weight and consideration in fixing the location of the John Wester; yet it was a mere resort to calls, and was no higher evidence than the other evidence establishing it by calls, commencing at the-white oak on the eastern side, neither of which is conclusive, and both of which are entitled to great weight and consideration.”
    5. That the territory covered by the entire block of surveys being owned by Jeremiah Parker, he had a right to sub-divide it as he pleased and to determine the application of the parts thereof to the several warrants. That, having caused the John Wester to be patented in 1795, by well-defined limits, he thereby fixed and determined the territory as applicable to that survey, and the defendants are concluded thereby.
    Ans. “The answer to the fifth point is as follows: The description of the territory in the patent is identical with the return of survey, but furnishes no evidence of any other or different subdivision of the block than the official surveys. That is the only answer that I can think of giving to that point. I have been' unable to see wherein the patent furnishes any evidence of the true location of this survey. It furnishes no evidence of any other sub-division of it than the original survey. It is a copy of the original survey, recites the original survey, and whatever evidence there is in the original survey of location, the same is in the patent; no more, no less.”
    6. There being no dispute concerning the facts of this ease, nor-any difference between the surveyors called by the respective parties as to the marks upon the ground, the location of the John Wester is a question to be determined by the court, whose duty it is to instruct the jury specifically how their verdict should be rendered, and there is, therefore, no question of fact to be submitted to the jury „
    Ans. “We answer that point as follows: It will be the duty of the jury to apply the rules of law under the direction of the court to the undisputed or ascertained facts, and render a verdict accordingly. It will be your province to apply the rules of law that the court has mentioned to this question, and render a verdict accordingly ; apply the rules of law to the facts admitted or ascertained by you. I do not know that there is any dispute of facts unless it be something in reference to the cutting of timber by Eger and Porter. We know of no other dispute of facts in this case.”
    7. That under the uncontradicted evidence in the cause, the John Wester should be located where plaintiffs claim it should be located, adjoining the John Pitlong and Adam Pitlong on the west, and in the tier adjoining the Pitlongs, and the Wester on the east; and, therefore, the plaintiffs are entitled to recover.
    Ans. “We decline to give you the instruction asked for in that point. We have already called your attention to the importance of giving due regard to the calls of surveys, giving them due weight.”
    The following were among the defendants’ points, with the answers thereto:
    2. That if the jury find, from the evidence, that the surveys of the Jacob Kriter and John Wester cover the same land, then the verdict of tlie jury should be in favor of' the defendants, as the Jacob Kriter is the older survey.
    Ans. “Answered in the affirmative, unless the jury find other evidence in the cause, which, under the instruction of the court, should modify or change this rule of law.”
    3. In order to ascertain the location of the Jacob Kriter- it is necessary to begin with the first or leading warrant of the block of which it is a part, and as the tract on the east of the block, in the name of John Brady, is a descriptive one, and the leading warrant, and its location unquestioned, the other surveys in the block must be located in consecutive order, as called for by the official survey; and if the jury are satisfied from the evidence that by so commencing and locating these tracts, the Jacob Kriter covers the land in dispute, their verdict must be for the defendants.
    Ans. “This point recites correctly the recognised method of ascertaining the location of a tract or tracts of land constituting a block of surveys, and is entitled to great weight as evidence of the true location; but it is not always conclusive, and may be counteracted by other evidence.”
    4. If the jury find from the evidence that the defendants, and those under whom they claim, for some years prior to, and at the time of the commencement of this suit, were in possession of the fourth tract west from the John Bra-dy, and in the same tier as that tract, and claimed the same under a title given in evidence by the defendants, and were not in possession of any land west of the said fourth-tract from the said John Brady tract, such possession and claim of title is evidence of the location of the Jacob Kriter survey.
    Ans. “Affirmed, the possession being some evidence of location.”
    In addition to the general charge, the court also said:
    “Now in reference to this tax sale. We were asked by the defendants to instruct you that inasmuch as they, had purchased this land for the non-payment of taxes, and that it was the land charged and the land that was sold, that if you believe the Jacob Kriter and John Wester tracts were located on the grounds in dispute, that their tax title was conclusive. We answered that point by saying that there was evidence of the payment of taxes on the part of the plaintiffs on the John Wester tract, and in consequence of that evidence the court declined to give the instruction asked for by the defendants’ counsel. In the argument it has been suggested that, inasmuch as there is evidence of the payment of taxes -on the John Wester tract; that if the jury should be of opinion that these two tracts occupy and are located upon the same territory, and the taxes on that territory having been paid, the defendants acquired no title by virtue of this tax sale. That would be true, and the the defendants would have no title if there was positive evidence that the taxes upon this particular John Wester tract had been paid. But that evidence is not conclusive. The evidence is that there were taxes paid on a tract of land in the name of John Wester in Limestone township. I think it very probable that it was intended for this tract of land, and probably if that question ever comes to be investigated, it could be ascertained and established that it was this tract. But at present we cannot stop to inquire in this suit whether it was or not. It is not such conclusive evidence as to destroy the defendants’ title under the tax sale. But it is evidence — such evidence as will induce the court to decline to give the defendants such instruction as they asked, growing out of the fact that they had purchased the land in dispute for the non-payment of taxes. * * *
    “I hope you understand the case, and I will merely reiterate the rules of law that I think should govern you in rendering a verdict in this case. In the first place you will endeavor to ascertain the location of these surveys, which of them is entitled to this territory, by pursuing the method of tracing them from their calls; ascertain their location from their calls, and the first and, perhaps, the most useful method is to commence at the leading warrant. The location of that warrant is fixed, because the warrant itself calls for a permanent location, and it is fixed and irremovable. Therefore the usual mode is to commence at the leading warrant. By commencing at the leading warrant, as the court understands it, and I think you will ascertain by running your fingers along the surveys, that process would result in giving the land to the Jacob Kriter tract.
    “ Another method that is entitled to equal respect and consideration is, to commence at any other well-marked corner on the ground, and especially the black oak on the James Linkton, because that is well established, and pursuing the calls of the different surveys till you come down to the John Wester — that would give this tract of land to the plaintiffs — give them the territory in dispute. Thus, you see, by pursuing these methods of locating by calls you arrive at different conclusions.
    “There is another consideration, that is the calls of the particular tracts. And, so far as the court remembers, the John Wester would be less disturbed than the Jacob Kriter tract would be in giving either of them the territory in dispute. The territory in dispute meets more of the calls of the John Wester than it meets of the Jacob Kriter tract. And that is a matter that you should take into consideration. But if, after you have examined and applied these rules, you are still in doubt, and believe that the return of both surveys covers the ground in dispute, then we think the priority of survey gives the Jacob Kriter preference and entitles him to your verdict.
    “I cannot think of anything else to say that would be of any service to you in this case. I feel inclined to give efficacy to this question of priority of surveys. I think we are authorized to do so by the rulings of the Supreme Court, and that we would be doing violence to the law if we did not do so; and where there is nothing in the calls that renders it out of place and improper to give to the Jacob Kriter the benefit of his priority of date, I think he is entitled to it. And, unless you are convinced by the testimony in the cause, and by the admitted testimony in reference to the lines, the boundaries that are found upon the ground, and counting from them by calls; unless you are convinced that the plaintiffs are entitled to this territory by virtue of those calls to such an extent that you cannot displace him, and that is where his survey was located, and the Jacob Kriter was not located there, then, I think, the defendants are entitled to the priority of the date. If these two surveys are located upon the same identical territory, then the Jacob Kriter, being five days earlier than the John Wester, takes preference and is entitled to the ground. If you should be of opinion, under this instruction, that the defendants are entitled to the verdict, you will render a verdict for the defendants generally. If, on the other hand, you find for the plaintiffs, you will render a verdict for the land described in the writ. With these instructions the court submits the case to you.”
    The verdict was for defendants, when plaintiffs took this writ, assigning for error the foregoing portions of the charge and the answers to points.

      Armstrong Linn, for plaintiffs in error.
    The undisputed evidence in this case showed that the exterior lines of the block warrants, surveyed for Jeremiah Parker, were distinctly marked upon the ground, and that the western tier, including the Pitlong surveys, was fixed and established in its location by lines found upon three sides and on part of the fourth side. The surveys at the northern and southern extremities of the fifth tier were also well located by marks on the ground. According to the opinion of the court in Beck v. Zimmerman, this combination of established monuments fixed the location of John Wester in his appropriate position in the fifth tier,' adjoining the Pitlongs, as indicated by the official return. But the court refused to be guided by the principles announced in that case, in a controversy concerning the location of a tract in the same tier of surveys, and adjoining John Wester on the south. Surely, when it clearly appears that two tiers of surveys in a block have been returned as occupying a space which affords room but for one tier, and that fact is made clear and manifest by the undisputed testimony in the case, the error is to be referred to the locality in the block where it was made, and the other portion of the block, if by the marks and monuments on the ground it corresponds with the official return, should not be disturbed, nor the surveys included therein removed from their proper position as a whole or in their relation to each other.
    There is no arbitrary rule requiring the location to be made from the leading warrant. True, in several cases, old and new, this court has said that in locating a body of warrants the proper mode is to begin with the leading warrant. But this, like every other general rule, is based upon some sufficient reason and yields when the reason thereof ceases, and is liable to many exceptions. There may be, and not unfrequently are found, marks upon the body of surveys, which furnish a safe and more reliable guide for location than a resort to the leading warrant, and a following of its calls.
    The direction as to the preference to be given to the oldest survey is wholly impracticable. As applied to the tier of surveys in question, the leading warrant was surveyed on the 14th of December, whilst the second and fourth tracts to the west were surveyed on the 9th, the third on the 10th, the fifth on the 11th, and the sixth on the 16th. Under this ruling, therefore, the second and fourth tracts must retain their location, whilst all of them but the John Wester must take precedence over the John Brady, which, in another part of the charge, the jury are instructed is the controlling survey of the block. A like analysis applied to other tracts of the block would result in such confusion and impossibility of application, as to demonstrate this suggestion of the court, to be novel as it is impracticable.

      Henry Johnson, J. W. Maynard and Allen G-amble, for defendants in error.
    The defendants located from the leading warrant, which they are justified in doing as the oldest rule, and they were in actual possession by the cutting of timber from time to time, and this possession was justified by the streams on the ground corresponding to the return of surveys.
    The plaintiffs relied upon the dictum in Beck v. Zimmerman, and the opinion of Rockefeller, the surveyor, who testified in that and this case. The testimony of Mr. Rockefeller not being concurred in by the surveyors of the defendants, but found entirely incorrect, the dictum is not authority in this case.
    The law was properly stated by the court below that if several surveys, under warrants of the same date, interfere with each other, the elder survey must prevail.
    The question of the treasurer’s sale being only for a part was not raised in the court below. It was admitted that the parties had title to their respective warrants, and the points raised were as to location. The court below so understood it, and so stated in their charge.
    The ejectment was brought to oust the defendants from possession of the certain location which they claimed was covered by the Jacob Kriter survey, and they cannot be put out of possession until title to the land has been shown to be in the plaintiffs, and they have failed to do so.
    The charge of the court below was merely an affirmance of the general and well-recognised rules of law, and -the case was fairly submitted to the jury as a question of location, to be by them decided, under the evidence and laws as settled by this court in all the cases.
    June 17th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

The facts of this case present a plain duty — that is to follow a former decision directly on the question, in the absence of evidence to indicate a better rule. There is nothing in this case to enable us to adopt a rule of title to govern it, different from that of actual location given to us by-the late Justice Thompson, in the unreported case of Beck v. Zimmerman. The case is a block survey returned to contain thirty-nine tracts, but with room for only thirty-six whole tracts. In this block two tracts and a part of the third have no land, but where the loss shall fall is uncertain, under the evidence. If the order of succession from the leading warrant must be observed, we are without evidence of this order. If priority of sale by the owner of the block be the rule, we have no evidence of the order of sales. If the date of survey be adopted, this would displace the James Linkton survey, which has a certain location by fixed monuments on the ground, in the northern boundary of the block. It is one of the last three surveys made on the 16th day of December, and yet is admitted to be tied to its place by a fixed law. Added to this, it is impossible to run the tracts consecutively from the 9th to the 16th of December without over-leaping earlier surveys, disjointing the block and making inextricable confusion. And were we to adopt dates wherever they occur in the blocks, we do not know they would correspond with the order of sales by the owner of all, and as to whom order of date is of no moment.

Having, therefore, no evidence on which a rule of title can be based, after displacement of some of the tracts, because of a lack of territory, we can do no better than to adopt the rule found in Beck v. Zimmerman; this is that the boundary of the tier of surveys on the western side of the block being defined by a well-marked line found upon the ground, and the black oak northwest corner of James Linkton, being found on the north line of the block, and the length of the tract on the south line of the block from the chestnut oak being given, the western boundary of the second tier of surveys is also fixed. This being so, and the John Wester tract being one of this second tier, its location is necessarily fixed where its owners have claimed it to be, and the James Kriter survey cannot displace it. It is of no consequence, therefore, where the loss of territory may fall, the John Wester survey has a fixed location of its own. This is strengthened by another fact. The tract adjoining John Wester and called for on its south side, to wit, the Joseph Wester (the subject of the Beck v. Zimmerman suit), lies in a tier of surveys not affected by the lack of territory. This is the third tier from the south line of the block, which has its length on the ground. Now, if we plant the John Brady tract by its actual monuments, where the Thomas Jenkinson appears on the connected draft, it runs over the north side of Bernard Hinkman (in the third tier), only in a point of a triangle, leaving a location for the Bernard Hinkman, which loses only a part of its quantity. The third tier, therefore, retains its proper place, with simply a loss of a part of the land in one of its tracts, but still extending to the diagonal tier on the eastern side of the block. This diagonal is one of the block lines, for it ha,s a monument at each end and a straight line from corner to corner constitutes the boundary. Thus the second tier of surveys from the west being fixed by actual monuments, and the third tier from the south being likewise so fixed, the John Wester in the second tier from the west, and in the fourth tier from the south is fastened to its place by the first tier on the west and third from the south, so that it cannot he removed. Joseph Wester, its southern boundary in the third southern tier, is fixed also by the verdict and judgment in Beck v. Zimmerman.

Hence the rule of dates laid down in the court below is not applicable. In a block survey where the owner of the block owns all the surveys, which are bounded by paper lines, and he sells in no legal order of succession, it is plain the date rule is without meaning. Possibly, there may be a case where it must be resorted to in a block of surveys, but its true place is in separate surveys for different owners, where priority of survey necessarily gives title. According to the facts before us and the former decisions the court below erred.

Judgment, reversed and a venire facias de novo awarded.


author: Per Curiam.

text:
    The Citizens’ Building and Loan Association of Centralia versus Hoagland and Gass.
    The Act of April 4th 1877 authorizes the party or parties aggrieved by the decision of the Court of Common Pleas to appeal in all eases of application to have any judgment entered, on warrant of attorney, or judgment note opened and defendant let into a defence. Held, that where the court orders the judgment to be opened and directs an issue, no final judgment upon the application takes place against the plaintiff such as will entitle him to take an appeal therefrom.
    June 15th 1878.
    Before Aqnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Certiorari to the Court of Common Pleas of Northumberland county: Of May Term 1878, No. 164.
    In March 1873, J. J. Hoagland applied to the Citizens’ Building and Loan Association of Centralia for a loan, and as security therefor offered his father-in-law, Martin Gass. On the execution of a bond and mortgage to the association by Hoagland and Gass the money was paid over to Hoagland. In 1875 Hoagland made an assignment for the benefit of creditors, and appointed Gass his assignee. His assigned property paid but a small portion of his indebtedness, and nothing whatever was paid on the loan. On July 6th 1877 the bond of Hoagland and Gass was entered in the Common Pleas of Northumberland county and execution issued against the property of Gass, which was stayed, and an alias issued to November term. On the 21st of November Gass petitioned said court, setting forth that the association had a judgment against Hoagland for $2000, to February term 1871, in the Court of Common Pleas of Columbia county, and that said association had agreed to release him, Gass, from all liability, as bail on that judgment being fully paid by Hoagland; that Hoagland had paid said judgment ; and praying therefore that a rule to show cause why the judgment should not be opened, &c., might issue. On the same day the rule was granted, and on the 15th of February 1878 the rule as to Gass was made absolute. This action of the court in opening the judgment was assigned for error by the association, which took this writ.

      S. P. Wolverton and L. 3. Kase, for appellant.
    The judgment was entered by virtue of a warrant of attorney, and under the Act of Assembly of April 4th 1877, Pamph. L. 53, the proceedings of the court below to open the same can be reviewed by the Supreme Court.

      W. O. Packer, for appellee.
    The application to open a judgment is an appeal to the discretion of the court, and the action of the court in opening the judgment upon such application is not a final judgment, and was npt, therefore, the subject of review in the Supreme Court prior to the passage of the Act of April 4th 1877, “ providing for appeals from the Court of Common Pleas, in case of applications for opening judgments entered on warrants of attorney.” But even under that act it has been held that a writ of error will not lie to the action of the court (The Peoples’ Fire Insurance Company v. Hartshorne, 3 Norris 453), and the party aggrieved by the decision of the court thereon, can only “have the same reviewed in the Supreme Court by appeal in like manner and proceedings as equity eases are now appealed.”
    June 24th 1878,
   The judgment of the Supreme Court was entered

Per Curiam.

The Act of 4th April 1877, Pamph L. 53, authorizes the party or parties aggrieved by the decision of the Court of Common Pleas to appeal in all cases of application to have any judgment entered, or warrant of attorney, or judgment note opened and defendant let into defence. It is manifest no final judgment upon the application takes place agaiqst the plaintiff, until the case has been heard and the judgment entered thereupon, setting it aside or lessening its amount. Here the judgment was merely opened and an issue ordered. Until the issue is tried, and the court acts upon it, a final judgment is not entered. It would be intolerable to have an appeal on the opening order and then an appeal or writ of error, as the case might be, on the determination of the issue, and final decree of the court. It is different in the case of the defendant when the opening order is denied. He then has no remedy if the court errs in refusing to open the judgment. The appeal in this case is premature.

Appeal quashed, and the appellant ordered to pay the costs, and the record to be remitted with a procedendo.


text:
    Frick’s Appeal.
    A. made a deed absolute to B. The latter executed a declaration of trust, wherein it was acknowledged that the money to be paid by B. to A. was the proper money of certain creditors of A. Held, that this declaration of trust was not in the nature of a defeasance, and did not, with the deed, constitute a mortgage, and the deed having been recorded, although the declaration of trust was not, the deed was not to be postponed to a judgment-creditor of a subsequent date.
    June 18th 1878.
    Before Agnew, C. J., Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood and Mercur, JJ., absent.
    Appeal from the Court of Common Pleas of Union county: Of May Term 1878, No. 91.
    Appeal of Henry Frick and others, from the decree of the court in the matter of the distribution of the fund arising from the sheriff’s sale of the real estate of John H. Beale.
    The fund arose from a sale upon a levari facias on mortgage of Hugh P. Sheller, against John H. Beale, under which certain real estate situate in the borough of Lewisburg, was sold by the sheriff on the 2d day of December 1876. As to part of the real estate sold, the terms not being complied with by the purchaser, there was a return made to that effect, and an alias levari facias was subsequently issued, returnable to February term 1877. This writ was afterwards, however, stayed, some arrangement being made by which the property was taken by the purchasers at the sheriff’s sale. The court confirmed the sale to them, and on the 24th day of May 1877, the sheriff paid the fund into court.
    The balance claimed as applicable out of the present fund in order to satisfy the mortgage of H. P. Sheller was the sum of $1138.57, and as there was no controversy with regard to this amount, it was allowed by the auditor, and was to be paid out of the fund.
    The application of the remainder of the fund was a subject of dispute. It was contended on one hand that it should go to certain parties intended to be secured by a deed of conveyance, dated January 22d 1876, from John H. Beale and Mary T. his wife, to Henry Frick, for the consideration of $4250, which deed was recorded July 26th 1876, and which, though absolute on its face, it was claimed was really a mortgage.
    On the other hand it was contended by Sheller that his judgments No. 190, May term 1876, and 191, May term 1876, against said John Beale, both of which judgments were entered on the 27th day of July 1876, should at least receive a pro rata amount of the fund in court.
    From the testimony before the auditor, the following facts appeared:
    Prior to the execution of the deed spoken of Henry Frick, the grantee, met A. H. Dill, Esq., upon the street, and after remarking that both Mr, Dill and himself were endorsers for Beale, inquired whether, if Beale made a deed to him to secure his endorsers, the same would be a valid security for them, to which Mr. Dill gave an affirmative answer. The deed was subsequently made and was delivered by Beale to Frick at Beale’s store, in the presence of, and after the deed had been inspected casually by, Mr. Dill. Upon delivering it Beale stated to Frick the purpose for which the deed was made. At the time the deed was made Beale told Frick that its purpose was to secure the endorsements; the endorsers meant being Henry Frick, Philip Billmyer, A. H. Dill, and Thomas Reber. Some endorsements were upon notes in bank, which had been renewed from time to time, and other endorsements were for money borrowed from Charity Lodge, A. Y. M. At the time the deed was made the consideration therein expressed appears to have been about tbe aggregate amount of the endorsements. The deed is dated January 22d 1876, from John H. Beale and Mary T., his wife, to Henry Frick, of a certain two-story brick dwelling and lot of ground in Lewisburg, for the consideration of $4250; was acknowledged on the 22d day of January 1876, and recorded on the 26th day of July 1876.
    The financial difficulties of Beale continuing, on the evening of the 26th day of July 1876 there was a meeting of his endorsers, Beale and Sheller, at the law office of Messrs. Linn & Dill in Lewisburg. Those present were Philip Billmyer, Henry Frick, Thomas Beber, John H. Beale, H. P. Sheller, A. H. Dill and J. M. Linn. The deed had been placed upon record on the morning pf this same day, and at this meeting Frick declared, in the hearing of Sheller and of all present, that he held the deed for the security of Philip Billmyer in one endorsement; of Henry Frick in two endorsements; of Henry Frick and Thomas Beber in- one endorsement, which was for money borrowed from Charity Lodge; of Thomas Beber in one endorsement; and also for the security of Messrs. Linn & Dill, in a collection wherein they had become liable, and that it was also held for the security of. A. H. Dill in one endorsement.
    From the evidence it did not appear that Sheller made any objection to the statement of Frick as to how the deed was held. At this meeting Sheller handed over to Messrs. Linn & Dill, as his attorneys, a judgment-note against John H. Beale, dated September 10th 1869 for $3500. There were also two other judgment obligations written, one for Sheller of $1443.88, consolidating two claims he held against John H. Beale, and another for the endorsers, including also the claim of Messrs. Linn & Dill. This latter judgment obligation was for the sum of $3807.63.
    On the next day, July 27th 1876, these judgment obligations were duly entered by Messrs. Linn & Dill, as the attorneys for the respective plaintiffs, in the Court of Common Pleas of Union county. On July 27th 1876 a trust deed was made by Henry Frick to Philip Billmyer and others, which reads as follows:
    “ To all persons to whom these presents shall come: I, Henry Frick, of the borough of Lewisburg, county of Union and state of Pennsylvania, send greeting. Whereas, by indenture of John H. Beale and wife, bearing date the 22d day of January 1876, and made between John H. Beale, of the borough of Lewisburg, county of Union and state of Pennsylvania, and Mary T., his wife, of the first part, and me, the said Henry Frick, of the same place, of the second part, they, the said John H. Beale and Mary T., his wife, for and in consideration of $4250, therein mentioned to have been paid to them by me, the said Henry Frick, have granted, bargained, or did grant, bargain and sell all that certain two-story brick dwelling or tenement [here follows description of the property]. Now know ye that I, the said Henry Erick, do hereby acknowledge and declare the said sum of $4250, above-mentioned, to be paid unto the said John H. Beale and wife by me, the said Henry Erick, as aforesaid, was and is the proper money of the Lewisburg National Bank of Lewisburg, Pa.; the Eirst National Bank of Mifflinburg, of Mifflinburg, Pa.; Philip Billmyer, of Lewisburg, Pa.; Charity Lodge, No. 144, A. Y. M., of Lewisburg, Pa.; A. H. Dill, of Lewisburg, Pa., and Thomas Reber, of Lewisburg, Pa., and the name of the said Henry Erick in the said indenture of John H. Beale and wife, bearing date the 22d day of January 1876, is only in trust for them, their executors, administrators and assigns or successors, and that I, my heirs or assigns, shall at any time or times hereafter, upon the requests and at the proper costs .and charges of the said Lewisburg National Bank, &c., their executors, administrators, assigns or successors, convey by a good and sufficient deed the said premises so bargained and sold unto me, the said Iienry Erick, as aforesaid, together with all my estate, right, title and interest thereunto in such manner as by them, the said Lewisburg National Bank, &c., their executors, administrators, assigns or successors shall be reasonably required. In witness whereof I have hereunto set my hand and seal this 27th day of July 1876. Henry Frick, [l. s.]”
    Said trust deed was duly acknowledged July 27th 1876, and was recorded August 7th 1876.
    The judgments confessed by John H. Beale to Sheller were based upon debts contracted prior to January 22d 1876, and such was also the case as to the judgments confessed to the endorsers.
    The finding of the auditor, which will be found in substance stated in the opinion of this court, was overruled by the court, and from this decree this appeal was taken.

      Linn ¿f1 Lili and George E Miller Sons, for appellants.

      William Jones and William Van Gezer, for appellees.
    June 25th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The auditor found that the deed from John H. Beale to Henry Erick, dated January 22d 1876, was a mortgage, for the reason that it was accompanied with a defeasance, which was not placed upon record until after the judgment of Mr. Sheller had been entered. This, without more, would have brought the case within the rule laid down in Friedley v. Hamilton, 17 S. & R. 70, and followed uniformly since, that an absolute deed and defeasance, made at the same time, constitute a mortgage; and if the defeasance be not recorded, it is to be considered as an unrecorded mortgage and postponed to a judgment-creditor of a subsequent date, notwithstanding the absolute deed has been duly recorded. But the auditor also found that Sheller, the judgment-creditor, had notice of the true character of the deed before he entered his judgment. He therefore excluded Sheller from participating in the residue of the fund after the payment of the paramount mortgage, and gave it to the endorsers and parties interested in the deed. The court below reversed the auditor upon exceptions, and allowed Sheller to come in pro rata with the parties above referred to, for the reason that even if Sheller had notice of the true character of the deed when he entered up his judgment, he had not such notice at the time the debt was contracted.

We do not think it necessary to discuss this question, as we are of opinion there was not sufficient evidence in the case to establish the defeasance. The deed of January 22d 1876 is absolute upon its face. The paper executed by Frick on July 27th 1876 is a declaration of trust, and lacks every essential element of a defeasance. This was conceded by the auditor. He says: “The defeasance is not to be found in th'e deed dated July 27th 1876, and recorded August 7th following, but rests in parol, and began to exist as soon as the deed from John H. Beale to Henry Frick came into existence.” The auditor was evidently misled as to the true character of the transaction by the statement of some of the witnesses that Frick, the grantee, had declared that the deed was given “ to secure the endorsers.” There is no doubt it was given with a view to the security of the endorsers, but not in the sense of a trust in which Beale, the grantor, was to have any future or resulting interest. The consideration named in the deed was the precise amount of the endorsements, and was as much as the property was worth at a full valuation. The testimony of Beale, the grantor, is explicit upon this point. He says: “The character of the deed was that the property was to be sold and the proceeds go into bank to lift the notes these men were endorsers for. There was nothing said about what was to be done with the property in case I paid the notes on which these men became endorsers; I never took that into consideration. I knew that I had not the means to pay the notes. If Mr. Frick paid the notes the property was to be his.”

We are of opinion that the deed of January 22d was an absolute conveyance, qualified by the subsequent declaration of trust, and that having been recorded prior to the entering of Sheller’s judgment, Sheller has no right to receive any portion of the residue of the fund.

The decree is reversed, and it is ordered that the fund be distributed as reported by the auditor. The costs of this appeal to be paid by the appellee.