Dutch Corner Historical Society v. Stahl

DISSENTING OPINION BY

Judge COVEY.

I respectfully dissent from the Majority’s holding that the 1979 connected draft prepared by the Department of Community Affairs “conclusively establishes that the new claim for vacant land as alleged in the application does not exist.” Maj. Op. at 1208 (emphasis added). To the contrary, the Pennsylvania Supreme Court in Gratz v. Beates, 45 Pa. 495 (1863) stated: “Certified connected drafts of adjoining surveys on file in the land office, are always evidence in this state; not as the foundation of title, but as aids in locating individual surveys.” Id. (emphasis added).

The Court expressly explained:

So in regard to the relative efficacy of evidence to be drawn from connected drafts and certified single surveys. Both species of drafts were used in this case, on the question of location alone, and both were evidence for that purpose. The learned judge expressed his opinion that the connected draft did not show a location of the Elizabeth Harris warrant on the land in controversy, but referred to the separate drafts as superior evidence in case of a discrepancy between them and the connected draft. This was all he was bound, or had a right to do. As the first step in showing title, a connected draft is not [conclusive] evidence. Its only purpose is to group together surrounding and adjoining surveys, and by a presentation of the whole ground at one view, enable a court to judge of the location of the particular tract in controversy.

Id. (emphasis added). A connected draft certified by the land office is “a matter of fact to be determined by the jury [fact-finder] from the evidence, and not a matter of law to be ruled in the first instance by the court.” Sweigart v. Richards, 8 Pa. 436, 8 Barr. 436 (1848) (emphasis added).

*1209Professional land surveyor (PLS) Norman S. Van Why (PLS Van Why) acknowledged that a connected draft or a connected drawing is simply a laying out of “deeds or warrant, patents and start putting them together to show how they adjoin.” R.R. at 67a. He described how the connected map is prepared, similar to the Pennsylvania Supreme Court in Gratz, as follows:

A connected drawing is when you would take deeds or warrants, patents and start putting them together to show how they adjoin. It will start showing you where you would have gaps, overlaps, vacancies, [sic] This graph will show several of those features. And when the Bureau of Land Records puts these connections together, they always put their sources as to where they found the information in the Bureau of Land Records, the name of the warrant, the acreage, the warrant date, the survey date, the patent date, to whom it was patented, the patent information and if the land has any particular information and/or if the ground or the warrant was not patented.

R.R. at 67a. PLS Kenneth Schulze (PLS Schulze) testified that when a connected drawing is certified “[t]he only thing they’re [Land Office] doing is certifying that the information is correct, not that the positioning of it [deeds, warrants or patents] is correct.” Id. at 104a (emphasis added). As the Pennsylvania Supreme Court in Sweigart held, the connected map is not conclusive as a matter of law, but only a piece of evidence, the weight of which is to be determined by the factfin-der. Department of Conservation and Natural Resources (DCNR) PLS James J. McElwee (PLS McElwee) confirmed that title begins with a warrant, followed by a survey on the warrant, and finally a patent which establishes that the land no longer belongs to the Commonwealth or a proprietor. Id. at 254a. He referred to it as “the patent’s completion title.” Id.

At the crux of this controversy are two competing connected drafts: the 1979 Connected Draft, relied upon by PLS Van Why (Exhibit 36), and the Connected Draft prepared by PLS Schulze in support of the Applications (Exhibit 46). The 1979 Connected Draft depicts the Garretson Warrant and the Ross Warrant as adjoining, thus, showing no vacant land. Whereas, the Schulze Connected Draft shows gaps between the two warrants, thereby, revealing vacant land at the top of Evitts Mountain. The other pertinent difference between the two Connected Drafts is that the 1979 Connected Draft relied upon the unrecorded 1886 draft resurvey of John Fluck (Fluck Survey), Exhibit 42, which according to PLS Van Why extended the Ross Warrant 27 rods.1 (The survey performed prior to Fluck’s Survey was conducted by John Bennett in 1831). PLS Schulze found the Fluck Survey to be contrary to standard professional land survey- or procedures and therefore unreliable. PLS McElwee concurred in PLS Schulze’ conclusion. The Fluck Survey deficiencies will be discussed in more detail below.

When PLS Schulze was asked what a significant variance between the Fluck Survey and the Garretson Warrant is, he responded: “The main thing is that [Fluck] is identifying Ross as an ajoinder on that line. If there was a resurvey to be done the Ross [W]arrant is much senior [sic] the Garretson [W]arrant should have joined it.” Id. at 95a. When asked about Fluck’s conclusion that the 1831 survey by Bennett “is 27 rods short”, PLS Schulze replied: “If it would have been long I *1210could have understood. Short doesn’t work.” Id. at 98a. He further explained:

[ T]he surveyor was supposed to have a true bearing and neat measurement, which meant that you did not slope the chain or the — whatever they’re using, up the hill. It had to be horizontally plumb. I don’t know if they use plumb bobs, but anyway if you slope chain a distance up — and this is all going uphill. And we’ll say it’s 1,000 feet on an angle like this, so if you come to vertical it may only be 800. So our problem in the past is that if we take 1,000 feet that— they said we don’t reshoot everything. So we got — you got to evaluate what type of conditions they were surveying, how accurate was the type of equipment.

Id. PLS Schulze further expounded concerning the improbability of the survey being 27 rods short:

So, you got a new survey coming up out there and we are now running 37 degrees when the original was 42. There’s a big deviation and [PLS Van Why] shows himself, I’m starting here, I’m cutting across the vacancy. I’m starting here, I’m cutting across the vacancy (sic) and I’m ending up there, which does not influence our patent or warrant application.

Id. at 99a. Correspondingly, when PLS McElwee was asked “[w]hat significance if any, would you attribute to a movement of 27 rods as proposed by [PLS] Van Why?” he responded:

Well, if I understood it correctly Mr. Fl[u]ck, I guess was saying that he found the distance to be 27 rods too long and I concur with [PLS] Schulze that measuring up the mountainside like that and given that Mr. Bennett had supposedly Mr. Wood’s original survey, so he had distances. If you measure 150 perches [2] up a mountainside like this— okay. Take distance 150 and you have a plug here assuming you could, when you lay that down that 150 is going to be more like 130. There is no conceivable way the slope distance can give you a longer course. The only way that they could end up with [sic] actual distance being too long is if they measured way too long.

Id. at 107a. PLS McElwee further testified that in the area of Imler’s property, none of the warrants go to the top of the mountain. Id. at 254a. Similarly, regarding Buterbaughs’ property, the source of title is the “William Ross [W]arrant” and the William Ross Warrant does not go to the top of the mountain. Id. at 255a.

Notwithstanding the above-cited Pennsylvania Supreme Court cases and testimony, the Majority maintains that the 1979 Connected Draft is conclusive evidence and cites Smucker v. Pennsylvania Railroad Co., 188 Pa. 40, 41 A. 457 (1898) and Holmes and Holmes v. Public Service Commission, 79 Pa.Super. 374 (1922), to support its position. However, these cases are clearly distinguishable as they both involved eminent domain. In one case the map was created at or about the time of the taking and, in the other case, the map again was prepared at or about the time of the taking and the reliability of the map was not questioned. The Smucker Court expressly found that the map in question “was not a paper between the parties as to boundary, but a signification by the [C]ommonwealth of the quantity taken by boundary.... This map having been made about the time of the appropriation, and deposited in the proper place, its authenticity could not thereafter be questioned.” Smucker, Pa. at 44, 41 A. at 458 (emphasis added).

*1211Similarly, in Holmes the plaintiffs were seeking damages from the Pennsylvania Railroad for building an embankment on their property. The railroad submitted a map to show the boundaries based on a drawing of a lock house made at the time the railroad ■ first acquired the canal in question. The Holmes Court held that the map was admissible as an ancient document and conclusive because “[t]he map, made in or about 1848, showed that the lock house abutted on the canal towpath, and it was unquestioned that if this was so, the embankment was not on plaintiffs’ land, for it did not extend as far south as the lock house foundation. The plaintiffs admitted that if the towpath extended to the lock house foundation there was no encroachment upon their land.... ” Holmes, 79 Pa.Super. at 380 (emphasis added). Clearly here, the 1979 Connected Draft is not a signification by the Commonwealth of boundary taken, it was not created contemporaneously with any warrant, and it is not unquestioned. As our Supreme Court has expressly espoused: a connected draft is “not [conclusive as] a matter of law to be ruled in the first instance by the court.” Sweigart (emphasis added). Given the discrepancy between the two connected drawings and the reasons proffered therefor, the 1979 Connected Draft cannot be accepted as conclusive, but rather is “a matter of fact to be determined by the [factfinder] from the evidence.” Id. A document is only as reliable as the strength of its contents. Where indicia of a document’s unreliability are evident from the document and surrounding circumstances, we should decline to find it conclusive as to the matters contained therein.

It was within the Board’s sole province to determine the evidentiary weight to be given to each drawing. Pennsylvania Game Comm’n v. K.D. Miller Lumber Co., Inc., 654 A.2d 6 (Pa.Cmwlth.1994). The Board found that the Fluck Survey was not recorded and it discounted PLS Van Why’s testimony on that basis, which it had the authority to do. The Majority, however, maintains that the Board did not give sufficient weight to PLS Van Why’s testimony and documentary evidence and improperly found it was not persuasive because it was based on the Fluck Survey. Specifically, the Majority opines that “[t]he fact that the resurvey was not recorded has no bearing upon its competence as evidence....” Maj. Op. at 1206. To the contrary, the purpose of recording a survey is to put others on notice. As the Pennsylvania Supreme Court ruled: “What is done by public officers, and recorded in a public office appointed for that purpose, must be considered as known to all persons.” Goddard v. Gloninger, 5 Watts 209 (Pa.1836). Notably, the Fluck Survey is actually a letter Fluck authored describing the resurvey he conducted. R.R. at 72a. Moreover, Fluck’s letter, the only primary source on record, does not include Fluck’s original drawing. R.R. at 420a-422a.

As with other administrative agencies, all determinations of witness credibility and evidentiary weight are solely within the province of the Board. Accordingly, it is not the function of this [C]ourt to judge the weight and credibility of the evidence given before an administrative agency. In deference to the Board, therefore, we will not challenge the Board’s assessment of credibility or evi-dentiary weight. ...

Pennsylvania Game Comm’n, 654 A.2d at 9-10 (citations omitted). Here, the Board concluded:

[PLS] Van Why’s documentary evidence [3] on this issue is bottomed on *1212draft resurvey made by a John Fluck in 1886 of the official boundary by John Bennett in 1831.... There is no evidence of a corrected Warrant having been accepted contemporaneous with Fluck’s [Sjurvey....
The original title to all lands in Pennsylvania is the Warrant. Patents granted by the governor and subsequent deeds and other documents of title cannot grant more than the Warrant nor can a subsequent document, except by agreement or compromise, alter it. Fluck’s resurvey of the Garretson proposes to change the boundary of senior William Ross and Cissna warrants. No evidence of an agreement or compromise exists in this record. Thus, Fluck’s resurvey cannot form the basis for a finding in this case.
The Board finds persuasive PLS McEl-wee’s testimony and the Board accords great weight to his analysis and conclusions. ... The Board also agrees with PLS McElwee’s conclusion that because the lines of the original warrants prevail in a determination of whether vacant lands exist, the resurvey of the Garret-son Warrant 55 years later could not affect the boundary lines of the 1831 surveys.

Board Dec. at 19-20.

PLS Van Why testified regarding the 1979 Connected Draft which was not prepared by him, but another individual. The 1979 Connected Draft relied on the Fluck Survey for only one warrant in question— the Garretson Warrant. Id. at 67a. PLS Schulze testified that he created his own connected draft, which was confirmed by PLS McElwee. PLS McElwee evaluated the Applications, prepared a detailed DCNR Report regarding the same and testified to such at length before the Board. Id. at 78a-109a, 271a-330a. As the 1979 Connected Draft was not conclusive evidence, and it was within the Board’s province to reject the documents relying on the Fluck resurvey, I believe the Board’s decision should be affirmed.4

Judges SIMPSON and McCULLOUGH join in this dissenting opinion.

. A "rod” is "a linear measure equal to 5.5 yards, 16.5 feet, or 5.03 meters.” Webster's New College Dictionary 982 (3rd ed. 2008).

2. A "perch” is "[o]ne square rod of land.” Webster's New College Dictionary 836 (3rd ed.2008).

3. PLS Van Why's documentary evidence that relied on the Fluck Survey consisted of the *12121979 Connected Draft, the 1986 map and the 1910 deed. Hence, contrary to the Majority’s assertion, the Board did state why it rejected the 1979 Connected Draft.

. Concerning the other issues Petitioners raised, I agree with the Board and would, therefore, affirm on those grounds as well,