Burchfield against M'Cauley, 3 Watts 9

The opinion of the Court was delivered by Kennedy, J. The question growing out of the first error assigned seems to be involved in the question presented’ by the third error, which is, was the copy of the draft, purporting to have been made by Thomas Fenton, admissible as evidence? for if it was, then there was legal evidence given of a survey made by a proper officer; and the first error would not be sustained. I shall therefore consider these two errors together as one.

It must be borne in mind that the location of the land in dispute is west of the Alleghany river, and therefore comes under the peculiar provisions of the act of the 3d of April 1792, A warrant in the case of a settler under this act is not necessary in order to authorize the deputy surveyor of the district in which the land lies, to make a survey. The eighth

section directs that “the deputy surveyor of the proper district shall, upon the application of any person who has made an actual settlement and improvement on lands lying north and west of the rivers Ohio and Alleghany and Conewango creek, and upon such person paying the legal fees, survey and mark out the lines of the tract of land to which such person may, by conforming to the provisions of this act, become entitled by virtue of such settlement and improvement.” By the third

section of the act of the 30th of December 1786, a settlement on land is defined to be “ an actual, personal, resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family,” &c. And by the ninth

section of the act of 1792, it is required, in order to complete the settlement and improvement made under that act, that there shall have been cleared, fenced and cultivated, at least two acres for every hundred acres contained within one survey, and a messuage erected thereon for the habitation of man, and the residence of a family thereon for the space of five years next following the settler’s first settling of the same. Now if the evidence given by the heirs of M’Cauley on the trial is to be credited, Cornelius, M’Cauley, their father, in 1801, had an actual personal-resident settlement upon the land in controversy; and under the eighth

section of the act of 1792, had a right to call upon the deputy surveyor of the district to come and make a survey for him of the land upon which he was settled. At this time it appears from the evidence, that colonel Neville was the deputy surveyor of the district in which the land was situate, and that Thomas Fenton, as one of the witnesses said, was his deputy, and others of them, that he made surveys for him.

I do not consider it indispensably necessary that the agents or assistants of deputy surveyors should be appointed by writing either under or without the seal of the deputy surveyor; nor is it requisite, in order to establish such agency, that there should be evidence given, showing a formal or direct appointment of such agent or assistant by parol or otherwise. It may be inferred from circumstances proved; Burd v. Miller, 6 Serg. & Rawle 138; and especially after a lapse of thirty years as was the case here. In Bill v.

Levers, 3 Yeates 25, it was said by the court, “that the authority of an assistant to make a survey should not be too nicely scrutinized after so great a lapse of time as twenty-seven years.” And in that case, it having been proved that John Seely had transacted business in making surveys for James Scull, the deputy surveyor, whose commission expired by his death in December 1772, when Jasper Scull was appointed his successor, and a survey having been made by Seely in May 1773, without any authority being shown from Jasper Scull the then deputy surveyor, the court said that as it appeared that Seely had transacted business under a reputed authority from James Scull while in office, it might he presumed that he was the agent of Jasper Scull, the immediate successor, in May 1773, when the survey was made, though the authority did not then appear.

It is obvious that if such evidence were not to be considered admissible and deemed sufficient to establish an agency in such cases, after a lapse of thirty years, it would be difficult if not impossible, in a majority of cases, to show it at all, from the want of better that must necessarily arise from so great a lapse of time, even where better once existed; and consequently many titles to lands, considered indefeasibly good, might be objected to on this ground, which would produce much evil, and as it appears to me, no good whatever.

Neither do I think it has been the practice on the' trial of actions of ejectment, in order to give validity to a survey, to prove that the person acting in the character of deputy surveyor, by whom, as such, it was made, was duly appointed or commissioned, by producing his commission and giving it in evidence; nor yet by giving any direct evidence of its existence. Evidence that he acted as such, and was generally recognized and reputed to be such an officer, has been pretty uniformly received and held sufficient.

Then whether colonel Neville was the deputy surveyor of the district in which the land in question lay; and whether Thomas Fenton was his assistant at the time the survey was made, were questions of fact proper for the jury to decide from the evidence given them; and it appears to me that it was amply sufficient to authorize them to decide both these questions in the affirmative. That being the case, was proper evidence also given to show that colonel Neville, by himself or his assistant, had a sufficient authority, on the 25th of September 1801, to make a survey of the land in dispute for Cornelius M’Cauley?

We have seen that by the express and positive direction of the eighth

section of the act of 1792, an actual personal resident settlement on the .land is made a sufficient authority for this purpose; and that Cornelius M’Cauley had such a settlement upon the land at that time was abundantly proved by the testimony of witnesses who had seen it often, which was certainly the very best evidence that the nature of the thing would admit of. Then as to the proof of the fact that a survey was made by Fenton, as the assistant of colonel Neville; it was testified to by one of the chain carriers, and others who were present and saw him making it.

After such evidence being given, without any thing appearing that would impugn or detract from its credit in the slightest degree, it cannot be fairly contended that a draft of the survey purporting to be made out by Fenton, and proved to be in his handwriting, he'and Neville both being dead, and found in Neville’s office among his official papers, would not be admissible evidence. I take it that it would be clearly admissible evidence to go to the jury to show the date, location and extent of the survey.

But it is objected, that as no proof was given that the original draft purporting to be made by Fenton was in his handwriting or actually made by him, it ought not therefore to have been received in evidence, and that in this respect it is distinguishable from every thing that has been heretofore judicially determined in the reported cases on the subject.

Allowance must be made for the lapse of time in this case, which most probably has rendered such proof impossible, for it would seem from the evidence, that those who must have been acquainted with the handwriting of Fenton are dead, and it does not appear that any one saw him make the draft who could be called to prove the fact. Under these circumstances it would scarcely be reasonable to require such proof.

That this original draft was made by him at the time it bears date, may well be inferred from the evidence given that he was on the ground about that time, while M’Cauley was living on the land; made a survey for him; and that the draft itself came either from the hands of colonel Neville, the deputy surveyor, or his successor, as an official paper, with other official papers, to David Coon in 1809, when he was appointed the deputy surveyor of the district.

Neville and Hazlit being both dead, it was impossible to have their testimony, and therefore no presumption can be made ■against the plaintiffs below from the want of it; as possibly might have been, had they been living within the jurisdiction of the court, but not produced. The natural, and indeed, as it seems to me, the necessary inference then seems to be, that the draft was recognized and considered by colonel Neville as an official paper, preserved by him as such, and as such delivered over by him either to Hazlit, his immediate successor in office, or to Coon, who succeeded Hazlit.

But did the evidence given of it show it to be an official paper — for if it did, then according to. the rule laid down in a number of cases, and recognized and qualified in-Miller v. Carothers, 6 Serg. <$■ Rawle 221, it would, if it could have been produced, have been admissible evidence on the trial 1 The rule, as laid down and qualified in Miller v.

Carothers, is, “ that all papers found among the official papers of the deputy surveyor, may fairly be supposed .to be official papers (unless the contrary be proved), provided there were any orders in his hands, to the execution of which the papers might relate.” The late chief justice, in stating the proviso or qualification to this rule, uses the word “ orders,” because the case then before the court was that of land lying in that part of the state, where some written authority or order from the land office was necessary, in order to give a survey made of the land an official character; but in the case here before us, the settlement and improvement of M’Cauley on the land at the time, under the eighth

section of the act of 1792, of which plenary evidence was given, supplied the place of a written order, from the land office authorizing it, and made the survey official. Having shown now, that the original draft would have been admissible evidence in case it could have been produced, it follows of course, the non-production of it having been satisfactorily accounted for, that the copy of it, being first proved to be a true copy, was admissible as the next best evidence.

The second error is, that the court below “ erred in submitting the question of survey or no survey as a matter of fact to be decided by the jury.” I can perceive nothing in the charge of the court on this point that is not in perfect accordance with what has ever been, received as the law on this subject.

The court explained very correctly, and stated to the jury in very clear and intelligible terms, what constituted an official survey in the case of a settler on land west and north of the Ohio and Alleghany rivers and Conewango creek, by telling them that it was “ one made by the deputy surveyor of the district or his authorized agent, and whether such survey had been made was always matter of fact for the jury to determine.” I must confess that I have néver heard it asserted before, that the question whether a survey was made or not was not one of fact to be passed on and decided by the jury.

It is the province of the court to say what is necessary to be done in order to constitute and make an official survey, but whether done or not, is purely a question of fact that must ire referred to the jury to be settled by them. The rule of law on this subject is, acl questionem facti non respondent judices, sed juratores. The next and last error is, that the court below erred in their answers to the several points submitted on behalf of the plaintiffs in error.

After having read the charge of the court with attention, it appears to me that, so far as those points were material to the issue between the parties, the court answered them in their charge very fairly, fully and correctly. The first point xelates to the manner in which M’Cauley obtained possession first of the land. That having got it by the consent of Hoove)', he was ever after, as long as he held it, to be considered the tenant of Hoover and of those claiming under him.

The court, however, in substance told the jury, that if from the evidence they should be satisfied that M’Cau-Jey, after he took possession, disclaimed holding the land as the tenant of Hoover and of Burchfield, who derived his claim from Hoover and Cochran, and that he went on and erected a suitable messuage or dwellinghouse for the habitation of himself and his family, cleared, fenced and cultivated at least two acres for every two ixundred contained within his survey, and continued his residence thereon with bis family for the space of five years and upwards, intending to claim the land in his owxi right and for his own use, and Burchfield was aware of all this and made no claim during the interim to the land; they might presume he had abandoned his right to it, whatever it was; and if so, their verdict ought to be in favour of the plaintiffs below.

In this I can perceive no error. The right of Burchfield, derived from Hoover and Cochran, was of a very imperfect and merely inceptive character, and therefore might readily be abandoned; and the court, as it seems to me, very properly left it as a question of fact, to the jury, to determine whether lie had not relixxquished it; and if he had, there could be no doubt of the right of M’Cauley’s heirs to recover the possession of the land in question.

It was also contended on the trial of the cause, by the counsel of the plaintiffs in error, that the circumstances under which it was proved that M’Cauley quitted the possession of the land, and his neglect of it for something like two years before M’Elwayne took possession of it, furnished strong if not conclusive evidence of his intention to abandon his right to it; and that the court below erred in not instructing the jury to that effect.

It would have been error ixx the court if such instruction had been given; for, it appearing from the evidence that M’Cauley had erected a messxxage on the land suitable for the habitation of himself and his family, that he had resided thereon continuously for the space of thirteen or fourteen years, at least nine years beyond the time required by the third

section of the act of April 1792, and that he had also cleared, fenced and cultivated two acres and more for every hundred contained within his survey, he thereby became entitled, under the provisions of that act, to hold the land, whether be continued to reside on it afterwards or not, against all the world except the commonwealth, which, in case of his neglect to apply for a warrant and pay the purchase money due for the land to her within the space of ten years after the passage of the act of 1792, might have granted it to any other upon his paying the purchase money, by a warrant reciting the default of M’Cauley.

Continuity of a personal resident settlement on the land lying north and west of the rivers Ohio and Alleghany and Conewango creek beyond the term five years, is not necessary under the act of 1792, in order to keep alive and preserve the right of the actual settler, as it is under the acts of 1786 and 1794.

The mere leaving, therefore, of the possession by M’Cauley after he had fulfilled and performed every thing required by the act of 1792 to complete his settlement and to acquire his right thereby to the land, until he commenced, or rather his heirs after his death commenced, this action to recover the possession again, could not be considered an abandonment or forfeiture of their right. Judgment affirmed.