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Tho Great Ejoctment Suit.
The important ejectineut trial —im-
portant because of tlie vn.-t interests
involved in ita determination —of K. J.
J'runer ami Jacob Hurley ngain.-t the
heirs of tho late Dr. Daniel limit/.,
occupied the attention of our court I
during all of la.-t week. Tlii-< suit
was brought for the owner-hip ami
lMKacttuou of two valuable tract- of
coal and timber laud, including the
ground upon which the present thriv
ing town of Houtzdale stands, in
Clearfield county, ami by a change of
venue the cue was brought to this i
county for trial. The trial began on ;
Monday afternoon of la.-t week, nml |
la-ted until after ten o'clock ofSatur- ;
day night, when the jury returned a
verdict in favor of the defendants, j
The Hon. George A. Jenks, of Jeffer
son county and Gen. J a-. A. Beaver
np|xared for the plaintiff-, ami Hon.
William A. Wallace, of Clearfield
county, and Hon. C. T. Alexander for
Ihe defendant-. Judge Orvis wa- up
on the bench, assisted by Associate
Judge- Diven and Franck. The case
was ably aud closely tried by the
the attorneys ou Ivoth sides, and dur
iug the argument to the jury attracted
a great many listeners to the court
house. We have heard the charge of
.Judge Orvis to the jury spoken of by
lawyers, and others fully competent to
express an opinion,as oue of the ablest
and clearest expositions of the land
Jaw of Pennsylvania ever delivered '
to a jury, and a- a matter of general
interest to our readers we arc glad to
give space to this able production.
Jl read- a- follows :
Kuh ANII J. PRI-NKR and jin n>. c.,.,rt ~r
.Isma Hrsi.rr, I >•,.- (
1 ~f Ontra m.
i N" 206, A upHt !
HANNAH K. HRIMMN, et al. i TRM,T<-
CIIAR-.B or TUB CO, RT.
Gentlemen of' the Jury : This is an ac
tion of ejectment brought by Edward J.
Fruner and Jacob Hurley against Han
nah K. Hrisbin and Geo. M. i'rishin, her
husband, Eliza 11. Good and I). 11. Good,
her husband, Clara McAtoer and 11. J.
McAleer, her husband, all being heirs
Ht law of Ir. Daniel IfouU, and a large
number of other defendants named
t,|on the record, to recover possession
or six hundred and forty-four acres and
sixteen perches and allowance of land,
situate now, partly in Woodward town
ship ami partly in the borough of llout*
dale, Clearfield county. This action
was brought originally in Clearfield
county, aud by proper proceedings,
upon the application of the plaintiffs,
was removed to this county for trial.
Fjectmcnt is the proper and only form
of action, in Pennsylvania, by which
one party can recover land belonging to
him. which is in the actual possession of
another, when that other claims title to
the land.
It is a general rule of law. applicable
to ejectments, that the plaintiff must
recover, if at all, on the strength of his
own title, and not upon the weakness
of the title of his adversary. If neither
party shows a good title to the land in
controversy the law will leave the de
fendant in possession, where it found
him. Whoever is in the peaceable pos
sess ion of land, whether he has a good
title to it or not, has tho right to remain
undisturbed until the rightful owner
cornea ami asks that he shall turn out.
The plaintiffs claim this land under
two warrants granted by the common
wealth October 8, 1859, to Jacob Hurley
and E. J. Pruner. respectively. The
warrant to Jacob Hurley wa* for four
hundred acre* of land, and a survey in
pursuance of that warrant was made
' 'ctober 15, 1859, for three hundred and
aixty-three acres and ninety six perches.
The warrant to K. J. Pruner was for
three hundred acres, upon which a sur
vey was made October 19, 1859, for two
hundred and eighty acres and eighty
perches. These warrants were not lo
cated nor the surveys made by the Coun
ty surveyor of Clearfield county, but
wcro made by Henry P. Trcziyulny, a
surveyor living in this oounty. John
li. Cuttle, who was then County survoy
>r of Clonrfield county, Approved the
survey* thus made by Trcziyulny, but
endorsed upon the return that in hi*
opinion the land win not vacant and
tlice survey* interfered with survey*
made in 179!. upon warrant* granted to
ileorge Itickliain, Jacob It. Howell, Wil
liam Shell', and others.
These surveys were accepted by the
Surveyor (leneral, and on the 29th of
October, 1859, patent* were issued by
the Commonwealth, to Jacob Hurley
and K. .1. l'runer for their respective
trnrts. <>n December .'lO, 1804. l'runer
and Hurley conveyed these two tract* ot
land to Samuel Smith, a citizen of
New Jersey. The plaintiffs have given
in evidence a deed dated March 29,
187-1, from Charles 11. Smith and Sadie
V., hi* wife, Samuel 1.. Hurrough and
Mary Ann, Ids wife, Jacob 11. Lippineott
and Martha A., hi* wife, John 1.. Dough
ty and Kttima 1,., hi* wife, Samuel C.
Smith'and Agne* 11. Smith, hy their
guardian, Ann W. Smith, children and
heir* at law of Samuel Smith, late of
llnddonHehl, New Jersey, deceased ;
Ann W. Smith, hi* widow, and Ann W.
Smith, Charles 11. Smith and Joseph <i.
Shinti, his executors, to 11. J. l'runer
for these same two tract*. The will of
Samuel ('. Smith, if he made one, has
not been given in evidence, nor has any
authority heen shown in Ann W. Smith,
the guardian of Samuel C. Smith, Jr.,
and Agne* 11. Smith, to convey thee*
*tato of her wards. The defendant*
contend, that this deed conveys no title
to Edward J. Primer. We, however,
instruct you, for the purposes of thi*
*uit, that if you believe from the testi
mony of K.J. l'runer, that Charles 11.
Smith, Mary Ann Hurrough, Martha A.
Lippineott, Emma Doughty, Samuel
t\ Smith, Jr., and Agnes 11. Smith were
children and all the ehildten of Samuel
C. Smith, late of Iladdonficld, New
Jersey, then this deed would he a prop
er and legal conveyance of the inter- t
of those heirs who had obtained their
majority, and would therefore be a good
conveyance of the undivided four sixths
part of all the right, title and interest of
Samuel C. Smith, of, in and to, these
two tract* of land. The plum till* have
also shown a deed dated April 7th, 1>77,
from E. J. Pruner to Jacob Hurley for
the undivided one third part of thi*
land.
To what ever extent the plaintiff*
have thus shown the title to these two
warrants to have been conveyed to K.
J. Pruner by the deed of March 29th,
1873, to that extent they are entitled to
recover in thi* action, if the land upon
which their warrant* were located, was
vacant and unappropriated land in
1859 when these warrants were located
upon it. If, however; thi* land had
been previously appropriated by war
rant and survey, it would not be vacant
land upon which a new warrant eouM
be legally located, and the plaintiff*
would tuke no title whatever, under
their warrants, surveys and patents.
The defendants have given in evi
dence warrants, dated May With, 1793,
to George Hickliam. Jacob It. Howell,
William Johnson and Philip Loa*t, re
sjeclively, for 400 acre* each, and ur
veys made in pursuance of said war
rants on the 11th and 12th days of July,
179-1, and patents for each of the tract*
to Richard Peters in 1796 and 1797.
They have also given in evidence con
veyances of thi* title l<y various mean*
to Dr. Daniel Houtz, in 1*53, six year*
before the plaintifls' warrant* were in
sued. Tbo defendant* have also shown
the payment of taxes on Uieo four
tract* from I*os down to the bringing
of this suit by the various owner* of the
title. The defendants further contend,
that the Itcorge Hickliam and Jacob 11.
Howell tracts cover the land in dispute,
and of course are interfered with by the
plaintiff*' two surveys. This raise* the
quction a* to the proper location of the
tracts claimed by the defendants. If
they wen- located in 1793 *o a* to cover
the land in dispute, no title to thi*
land remained in the (,'ommnnwealth,
which could be granted in 1H59, to the
plaintiff*. Whenever the Common
wealth ha* once granted and conveyed,
any particular piece or tract of land,
any subsequent g: nt or
it, by lh' State, i* a* al>*nlii|ajfflflnj|
and void, a* if the same thing
by an individual.
The original title to all lull* ,1
tylvania i, since the revo|A n ,lL,
by law, HI the State or Conp, Rl
Regulations have been e*tj.'i,j7JWl by
statute, from time to tune, for the *a!e
and hy the <Vimtnonwealtli
to individuals, of such jmrtion* of land
a* remained vacant aril public. It is
unnecessary in this suit to explain any
of the various method* provided by
law, by which individuals could acquire
Ug C to portions of the public land, ex
cept tho one method, by warrant, sur
vey and patent.
Whenever an individual desired to
acquire title to any portion of land
still owned hy the Commonwealth, fie
made application in writing to tho land
office, specifying Ifie quantity desired,
l*|wtn paving the price fixed hy law to
tho Receiver General, aw irrnnl or order,
was issued from the land office, directed
to the Surveyor General requiring him
to survey off, to the applicant, the spec
ifled number of acre* from the vacant
or unappropriated lands. These war
rants were either general or descriptive.
A general warrant authorized and direc
ted the Surveyor General to survey to
the applicant the requisite number of
acre* from any of the public lands, with
out limiting him to any particular spot.
A dettripUvr warrant, directed him to
surrey the given quantity, at some par
ticular designated location. These war
rant* were transmitted by the Surveyor
General to his deputies, whose duty it
was to go upon the land, run and mark
the lines, establish the corner*, and
make s return of his work, including a
draft of the survey, into the Surveyor
General's office. If th'e return of sur
vey was accepted, upon the payment of
the ncceaaary and proper fees, a patrnt
or deed was issued hy the Common
wealth to the applicant.
If the warrant was a gtnrral one the
title of the applicant dated from the
time the actual survey was made upon
the ground. At that time the particu
lar land was appropriated to the appli
cant; and no one sulwequently, could
lawfully enter upon it, tinder any pre
tended warrant or authority, front the
Commonwealth. If the warrant was X
descriptive one. that is. if it fully des
crihed the laud, and the deputy sur
veyor located the warrant upon the
land described, the title of the appli
cant commenced with the date of the
warrant, for the reenrda of the land of
fice would show all appropriation of thin
particular laud to tint applicant at that
time. It frequently happened, how
ever, that the deputy surveyor, with a
descriptive warrant in hi* hand, did not
make the survey upon the land* des
cribed ; but located the warrant upon
other land, in another place. Thi* he
would do without any authofity, and
such act would not be binding upon the
Commonwealth, utiles* subsequently
ratified by the proper officer. The
(/'otninouwealth having issued a warrant
for a particular piece of land was not
bound to grant a patent to the appli
cant, for the same quantity ot land in
! another place. If, however, when the
j deputy surveyor made his return, show
ing that he has located the warrants
; upon other land* than those described,
i and this return was accepted and ap
proved by the land office, thi* was a
ratification of the act of the deputy
1 surveyor, and gave the applicant a title
I to the land* from the time of such rati
fication. hescriptivo warrants located
upon other lands than those described,
are called ".Tuff/-/ winanU, ' and title
! tinder them always dales from the re
turn and acceptance of the survey, and
i not from the dale of the warrant, nor
the dato of the survey.
A* we said before, it was the duty of
the deputy surveyor to go upon the
ground, run and mark the line* ami
i stablish the corner* for the survey. In
many instance* ho neglected hi* duty
and omitted to do this; but made a
drift in hi* office of a pretended sur
vey and returned it into the laud office.
Theso survey* so returned, but never
actually made on the ground, are com
monly Called "W wi'.r *ur- , !/■.'' Such
surveys were originally held to lie in
valid and were void as against a young
er survey, netually made on the ground.
In process of time it became difficult, if
not impossible, to determine whether
the survey had been actually marked
upon the ground or net. This resulted
from the death of the surveyor, the
disappearance of tree* from natural and
artificial causes, and front various other
occurrence* happening throughout the
country. It became necessary therefore
to adopt some rule in relation to sur
vey* where no line* for them could he
-found ujHiti the ground. The rule
which was adopted and which has long
since been the settled law of of Penn
-ylvania is this; A survey returned into
the land office and which has remained
unquestioned for twenty-one years will
be conclusively presumed to have been
made on the ground a* returned. Thi*
rule applies as well to blocks of surveys
a* to individual tract*.
At what particular place a survey
ni ide and returned long ago, was actu
ally located on the ground, is a ques
tion of fact and not of law. It i* the
province and duly of the court to de
cide all question* of law which ari-e m
a ease, and it i* equally the province and
• Italy of the jury to determine all ques
tion* of fact. In thi* case the location
of the survey* in dispute i* peculiarly a
question of fact to la? determined by
the jury, under all the evidence in the
otitae. In considering thi* evidence and
determining this fact, there are cer
tain rule* of law laid down by our Su
preme Court, which the jury mutt oh
serve. We will explain these rule* to
you, and leave you to determine all
question* of fact under them.
If the deputy surveyor did hi* duty
and went upon the ground, ran and
marked lines, the line* thus run and
marked bv him, constitute the actual
survey. Where the line* and corner*
m irked bv the surveyor can be found
and identified, th<-y are the highest and
bet evidence of where the surveyor lo
cated the tract. All other and infer
ior evidence must give way whenever
the line* and corner* can be found and
identified. If no line* can lie found
marked for the survey, then the rail for
adjoining tract* i* the next best evidence,
and will control the location of the
tract; but the calls for adjoiners must
be disregarded if the line* of tbo sur
are found upon the ground and are
the
the ground.
the official
distances must determine
Ws survey. These course# and dis
tance* are the lowest and weakest evi
dence of where the survey was located,
and mu*t give way, whenever there are
calls for adjoiners or actual line* found
ii|ion the ground made or adopted for
the survey. Both the course* and dis
tance* and the call for adjoiner* must
give way. if they are inconsistent with
the line* actually found ujw>n the
ground.
So far we have lieen speaking of sin
gle warrants and separate and Individ
tial survey*. I'nder tlm law a* it stood
in 179-3, no one individual could obtain
a warrant for more than four hundred
and forty acre#. If be desired to obtain
a larger tiody of lnnd than thi*. he had
to have different person* apply for and
obtain different warrants, and subse
quently transfer their right in them to
him, he usually paying the purchase
money to the t omrnonwealtii. Thi*
practice wo* very common from 1784 to
1800. Where a number of warrants
were applied for at the *ome time, and
the purchase money for them paid by
the same individual or company, and
survey* made in pursuance of such war
rant* u|Mn the same or *ucce**ive days,
and these survey* located to as to ad
join and calling for each other in sue
oea*ion, and the survey* when made all
returned at one time, they conatitute
what i* called a > 'block of turreyt." The
survey* constituting a block are not to
he treated a* separate and individual
survey* and each tract located inde
pendent of the reat, by it* own individ
ual linea or calls, or course* and dia
tance* \ but such survey* are to he lo
cated together aa a blnck, or one large
tract. Survey* made nnd returned a* a
block, mut be located upon the ground
in a block ; and that, whether their
line* can be found upon the ground or
they were chamber survey*. If line*
and corner* tnada for such a block of
surveys can he found upon the ground,
thi* fixe* the location of the block even
to the disregard of the call for adjoin
er* or natural monuments. The lines
and corner* found upon any part of a
block of survey*, belong* to each ami
every tract of the block, a* much a*
they do to the particular tract which
they adjoin.
If n younger block of survey* calls for
an older block, and no line* or corner*
can he found, made for the younger
block, tin- proper mode of determining
the location of nuch younger block i to
locate the older, and then locate the
younger adjoining it, Recording to it*
calls. II more than one older tract or
block is called for, and the younger
: cannot bo located no a* to answer all of
| itn cull*, that location muni he nelected
i for the younger which will answer most
' of it* rails, and at the name lime best
preserve the general configuration of
the block.
If, however, the linen and corners of
the younger Idock can he found upon
the ground,these must control the loca
tion of the block, even if by no doing
you have to entirely dinregard itn call*
for older track* or block*. Whenever
there i* a discrepancy between the linen
run and marked upon the ground and
the calls for older survey* or natural
monuments, the latter must always give
way and the line* and corners them
selves must govern the location. Thi*
rule i* equally applicable to individual
-urvi-yn, and to block* of *urveyn, and
' it i* the duty of every jury in deter
mining the location of surveys to re
member, and apply it.
The call* in a survey for waters, such
a* spring*, pond* and stream*, must be
considered by the jury in determining
tin- location of the survey. The value
ot thi* evidence, however, depend* ujion
circumstance*. If the surveyor wan not
upon the ground, but plotted the nur
vey in hi* office, he could have little
accurate knowledge of the location of
waters, and hi* call for lliem would he
hut slight evidence ot their existence.
If, however, the line* of the survey
were run upon the ground, and crossed
stream* of considerable si/a-, we would
expect nuch streams to be noted upon
the return of survey with reasonable ac
curacy. The course of stream* through
the interior of tract*, are seldom found
accurately laid down, for the reason that
the surveyor did not meander them,
and could not, therefore, accurately
give their different course*. Where
some of the lines of a survey were
run ujion the ground, and other* not,
waters purporting to cross the lines not
run are seldom found to be a* accurate
a* those crossing tbo line* which were
run. Where line* were not run upon
the ground, the surveyors sometime*
placed imaginary streams without any
knowledge, whether similar ones actual'-
ly existed or not. F.ven where line*
were actually run ujion the ground,
crossing streams, and we find those
stream* aeeur*t-lv designated upon the
tract* on one *ide of the line, we fre
quently find no streams at all upon the
opposite side of the line ; although the
stream which run* out of the one tract
across the line, must necessarily run
into the other.
What are the fact* of thi* case, to
which these principle* and rule* are ap
plicahle? The defendant* have shown
title to four tract* of land in the war
nntee name* of tieorge Bickham, Jacob
ft. Howell. William Johnston and I'bilip
l/<ia*t. These warrants are all dated
May 1<"-, 1793. Nine other warrant*
were issued at the same time, and the
thirteen constituted a hatch of warrants
of which the t 'aper Maine* was the first
or leading one. Surveys were made
upon thee thirteen warrant* on the
11tli and 12tlj days of July of the anie
year; these urvo)* were all returned
together in 17'.'f. In 1796-'97 patent*
were issued for all of these tract* to
Hichard Peters. These thirteen tracts,
therefore, constitute a block of surveys,
which is generally called the "Morgan,
liawle and Teter*" surrey*. These thir
teen tract* having been surveyed and
returned a* a block mud bo located
ujon the ground as * block. No one
tract, whether the t'osjier Maine* or the
Benjamin Johnston, can be arbitrarily
located, disregarding the line* and cor
ner* found uf>on other part* of the
block. All the line* and corners mark
ed ti|son the ground and returned.niut
lie considered in ascertaining the prop
er location of the block. If sufficient
line* and corners can be found they de
termine the location of the entire block
without regard to iU calls for adjoincr*
or for waters, if such call* conflict with
the lines actually run and returned.
The question is not what the deputy
surveyor who located these warrants
ought to have done, but what did he
actually dot Of course he ought to
have so located these warrant* a* not
to interfere with older surveys already
made; but did he do it? Wherever be
run and returned the line* of these
survey*, whether entirely u|>on vacant
land, or partly upon vacant land -and
I nrtly upon older surveys, there they
must remain for ever. If they interfer
ed with older surreys when they were
located and returned, they must re
main there, although the result would
be that the owner of these warrant*
would get no title to that |iortion of the
land covered by the older surveys.
All of the lines of this block of sur
veys as returned into the Land < tffioe,
are due north and south, and east and
west, except one—the south eastern
line of the Casper Haines, which runs
N. 44 K., and M, 44" W. Twelve of the
thirteen tracts are rectangular, Iwing
.'!2O rod* long from east to west, and 2.30
wide from north to south. The other
tract, the t'as|>er Haines, has five lines,
having'the south eastern corner of a
rectangle cut off by this diagonal line
running N. 44° K. These thirteen tracts
are arranged upon the official connec
tion* as follows : Commencing upon the
east the first tier contin* four tracta, in
eluding the Casper Maine*; the second
tier, which corners with firnt tier on the
north, extends southward and contain*
five tracts; the third tier, cornering
wiih the second upon the south, con
tains hut three tracts; the fourth or
western tier contains but one, purport
ing to lie directly west of the middle
tract of the tier—making the blmsk
from the southern line or the tieorge
Bickham to the northern lina of the
Henry Hhaffer or Jacob Cox 11IV0 rod*
long from north to south; and from
the western line to the Benjamin John
ston to the eastern line of the ('-asper
Haines or Joseph Matlock four miles or
1280 rods from east to west. On no
part of the exterior lines of this block
of surveys are older surveva nailed for,
except along the diagonaf line of the
Casper Haines, where the John Ander
son anil other survey* of 17KI urn call
ed for. If BO liii'-i an<l <• oiners of thin
block of survey* were found upon the
ground, the entire block could bti well
located from these eighty four survey*.
Them older survey* are well located
U|>ou the ground, and the surveyor*
ii|ori both aidett admit that their loca
tion in not a matter of diapute. Begin
ning with the northern corner of the
John Anderaon, which in a white oak,
and a well known and indisputable
corner of 17*1, and which in called for
in the return of the <'anper Ilainea, the
latter tract would fie well located along
: the old line ol 'B4, running H. 44 W.
from the Anderson white oak. The
<,'aaper Maine* being thus located along
the survey* of >l, the Joseph Matlock
| would go directly north of the f 'aaper
I Maine*, the Hohert Milt/heimer north
of the Matlock, and the Jacob Cox
north of the MilUheimer. Thi* would
! complete the eastern tier of tract* ae
-1 cording to the offy-ial connection. The
Henry Shaffer should then be located
directly h*l c r the Cox, the Thilip
I/O ant south of the Shaffer and went of
the Milt/heimer, the William Johnaton
-outh of the boast and went of the Mat
lock, the Jacob It. Howell eonth of the
Wrn. Johnnton and went of the Haines
and the fieorge I'-irkhain nouth of the
Howell. Thin would complete the sec
ond tier of five trai l*. Then the Tbo*.
I*. Wharton nhould he located directly
went of the fieorge Kick ham, the Wil
liam Shelf north of the Wharton and
went of the Howell; the Jnrael Whelin
north of the Sheff and wont of the
\V illiam Johnnton. Thi* would com
plete the third tier of three tract*.
The remaining or thirteenth tract, the
Kenjafrun Johnnton, nhould then be lo
jated directly went of the William Sheff.
| Thi* would locate the entire block,
giving to each tract it* proper position
and >|uantity of land, and preserving
| the general configuration or nbape of
the block. By thin location the call for
the '* I nurveyn on the noutheant of the
Cos per Maine* would be fully answer
ed, and no part of the block would in
terfere with older rurvey. By thi* lo
cation the *outhern linn of the block
would be north of the land in dispute,
leaving it vacant and liable to b<- ap
propriated by the two warrant* of the
plaintiff*.
We have naid that thin would be the
proper, and in fact the only location
which could be made of tin* block, if
no line* for it were found run ami
marked upon the ground; but if line*
were run and marked tijion the ground
ami returned for thin block of survey*,
these line* must control the location of
the block and not the call* of (bet;**
per Maine* for the survey* of 17x4.
The firt question ol fact concerning
the location of thi* block which you
must determine, i, were the line*' of
thoe surrey* run and marked by the
deputy surveyor hi 179.3. If they were,
then they muit determine the location
of the block. About this first question
there teem* to bo no room for dispute.
All of the surveyor* who have been call
ed agree that they find upon the ground
marked line* counting back to 1793
running in the right direction* and at
the right distance* apart to tuit this
block of survey*. We do not mean to
*ay that all of the lines of every tract
have been found ; but that a sufficient
number of line# have been found and ,
identified, to fix the general location of
the block. If you find thi* to be a fact,
you must reorl to these line* and the
corner* found upon theru to determine
where thi* block was located in 179.3.
The defendant* contend that thi*
block i* located upon the ground *o
far southward, a* to interfere with the
Philips nmyi/rf Ma) end June, n 11
By tin* location the tieorge Kirkham
and Jacob K. Howell tract* which they
own cover the land in dispute. In the
other hand, the plaintiff* contend that
the block i* located two tract*, or 4AO
rod*, further north, and that by their
location the block doe* not interfere
with the senior survey* of 179.3, and
that the land in dispute i south of the
southern line of this block. Thi* i* the
main oueMion in thi* case, and is a que*
tmn of fact for you to determine under
all of the evidence bearing upon it.
The first surveyor who was upon thi*
block of survey* after it was located
and whose testimony is given in this
•Ms® i* Henry t\ Trriiyulny. He testi
fie* that he w* upon thi* block of aur
veya, a* early a* 1822. What line* he
then run and what corner* he found be
doe* not give in detail. The next aur
veyor. whose testimony i* given in this
ease is Mavid Ferguson. He testifies
that he run the line* of this block of
survey* atiout thirty five year* before
hi* dejKwition w* taken in 1864 : that
would take it hack to 1829. He testi
fies that he spent shout a week in try
ing to locate these thirteen tract*, from
the call of the Casper Haines for the
Anderaon white oak. but that he could
find no lines or corners corresponding
to this location : that he did find the
block well located by line* and corner*
on the ground two tracts further south
and interfering very considerably with
the Philip's surreys He names the
living corners which he found corre
sjsonding with the return* of surveys,
and which were a large majority of all
the corner* upon the block. If the
testimony of this witness i* believed,
then fifty year* ago, most of the line*
and corners returned for this block of
surveys, were found by him upon the
ground, where the defendant* claim
the block to be located. It is conten
der! by the plaintiff* that the testimony
of this witness is not to be credited, Ire
cause at the time hi* de|m*ition was
taken, he was very old and infirm, so
much so, that he had to attest the dep
osition with a mark instead of writing
his name, and that no counsel was pre*
ent representing the plaintiff to cross
exsmine. And further that this witness
testifies to finding original lines, where
surveyor* now can find none and that
he failed to find a line where their aur
veyoti testify a line of 179.4 now i*.
The credibility of Havid Furguson, as
of all other witnesses is for the jury to
determine. If the plaintiff* have satis
fied you that he is unworthy of belief
then yoti should disregard his testi
mony. Bui the fact that he testifies to
having found lines and corners, which
surveyors cannot find fifty year* after
wards is hardly a circumstance militat
ing against the credit of hi* testimony,
for corner* and even whole line* mig&t
disappear In a half a century. Thla la
ahown by the fact that while many
corner* of this block of survey* are
hown to have been standing and liv>nx
within the ln*t thirty year*, but thr<-<>
or four of them, even if that many, are
living now,
I he next surveyor in order, wlio w..a
upon this block of surveys, wo* Johii
K. ' uttle who wax there tir*l in IH|:
and again in IH.VJ when he run out
I nearly the entire block. In the nam*
i year .fohn T. Hoover run thin block of
j *urvey* for Morgan, Itawle and Peter*
who owned them. The deprnition of
■ 'this witne** taken u|ori a former trial
I wa* read in evidence to you. Acoorap*-
| living thi* deposition i* a draft made by
Mr. Hoover, abowing hi* location of
thi* block of aurvey*. You will notice
by the deposition, a* well a* by the
draft attached, that Hoover did not
run the eastern line of the second tier
of tract* a* far south a* surveyor*
since have done. He ran only a* far
south a* the angle in the line of the
Thoina* Kdmondson, one of the Phil
ips He there found a maple
corner of 1793 and apparently took it
lor the southeastern corner of the
fieorge I'ickham where a maple i* call
! e<i for : and his draft show* that he
; formed the southern line of the JSick
ham by running a diagonal line from
the southwestern corner of the Kick
! nam to thi* maple of the Thomas Ld
mondson ; thu* shortening the eastern
| line of the Hick ham to ahout one haif
of its official length. This would have
been the legal and proper location of
I the I'.ickham if the apparent supposi-
I lion of Mr. Hoover had been true, that
j the surveyor in 1793 had made or adopt
| <i the Kdmondson rnaj.le for the south
j eastern corner of the Kickhsm. Hut
j surveyors subsequent to JK.V2, have
found the line of 1793 continuing
south of the Kdmondson maple the
| proper di-unce for the Rickbam and
j there found another maple corner, with
j |ointers or witnesses counting to the
| date of these survey*.
ou have next the testimony of
Jacob 1 r< -HI .1, a witnes* exarnineil in
i the trial of this cause in the U. S. Cir
! euit t 'ourt at Pittsburg in I*G7. This
witness ha* since died, and tiie note*
of hi* testimony taken at that time
have been read to you. He testifies
; what running he did upon this block
|of surveys, and what lines and cor
-1 tiers he found,
David Hough lestiGe* to having been
upon this block of surveys, first in l-.Vi
slid that he made a general examina
tion of this block in IHOI. You have
iii* testimony a* to the lines and cor
ners which he found uj>n the ground.
Recently several other surveyors have
been there and run sotne of the lines of
this block of surveys. They have each
testified to you what they found. Al
though, as was to l>e expected, the sur
veyor* who have la-en there more re
cently found less of the original work,
than they did who were there in an
earlier day.
It is contended by the defendants
that the testimony of all these wit
nesses, taken together, show* conclus
ively that the line* and corner* run
and established in 1793 and returned
to the Land < iffice, for thi* block of
surveys, are the same as those found
upon the ground, and that they fix the
location of this block of surveys where
the defendants claim it to he.
The plaintiffs have read to you the
notes of the testimony given by 11. I'.
Trcsiyulny ujion the trial of this cause
at Pittsburg. They have also called as
witnesses Thoma* W. Moote, who sur
veyed these land* in lKi4, and Samuel
K. MeCloskey, who surveyed there in
IM>3 and again in I*7*. Also James
< aldwell, who examined these surveys
in_ company wuth Mr. MoCloskey in
I v 7K. All these surveyors called by the
plaintiff*, while tuey admit that there
are lines of 1793uj>on the ground which
suit the defendants' location, oontend
that these southern line* were aban
doned by the surveyor who located
these warrants, and that he located
thi* block of survey* two tier* of tracts
or 4Gi roils north of where the defend
ants claim it to be. They testify to
having found marks of 1793 north of
defendant* location—that they find one
tree counting to 1793 some distance
north of the Anderson white oak, which
would lie about th# middle nf the Jos.
Matlock tract. a the plaintiff* locate it.
but would be along the eastern line of
the Jacob tox according to the defend
ants location. Thi, you will ol>servc.
is not north of the defendants' location,
and even should you believe it wa
made for a line for this block of
surveys, it would answer for cither lo
cation.
They also testify to finding marks
north of what is known as the hemlock
sapling, within some fifty or sixty roils
from it, two tree*, living, which counted
to 1793, and a third one, dead, which
could not be counted. They alao testi
fy to having found the western line* of
the Israel Whelm and William Sheff,
and the division line between these two
tract* according to the plaintiffs' loca
tion, which would t>e north of any tract*
of the block according to the defend
ants' location. The defendants' survey
or# contend that these lines are not
lines of 1793, but of 1794, and were run
there for tiie Thoma* Msston and other
tracts located there in 1794. The truth
of these allegation* you must deter
mine. If these lines are line* of 1793
they should be considered by you in
determining the proper location of Una
block of surveys. If. however, they are
linos of 1794 they are not evidence bear
ing upon the location of these surveys
in 1793, and should not be considered
by you at all.
None of the plaintiffs surveyors, al
though the first was there as early as
IVJ2, have testified to the finding of any
original corners for this block of surveys
north of defendants' location. While
they claim to have found lines and part
of lines, no one of them claims ever to
have found a corner or a pointer, or
witness to a corner, counting lark to
the date of these surveys. This is an
important fact which you should con
sider in determining whether this block
of surreys is located as far north as
they claim it to be.
Much has been said concerning the
waters called for, u|on this block of
surveys. f you take the separate offi
cial draft of the Jacob K. Howell, jrnu
will find a stream represented as flowing
eastward from it into the Casper Ifaine*.
if you take Ibe separate official of the
Joseph Msllock you will find a stream
represented as crossing it* southern