Concurring opinion, by
Agnew, J.— The plaintiffs in error claim under a survey in the name of Isaac Miller, upon which the name “ Starr” is marked as a call at the western side, and raises the only substantial question in the case.
In Quinn v. Hart, 7 Wright 341, Justice Woodward stated, as the result of the authorities upon the subject of survey, the following :—
“ The lines run and marked on the ground are the true survey, and when they can be found, will control the calls for a natural or other fixed boundary, and conclusively establish the survey, but when a younger survey calls for an older as an ad-joiner, and no lines are found to have been marked for the younger, on the side on which the older is called for, the line of the older becomes the division line between the two tracts, or in other words, the younger is to be laid so as to adjoin the older. If no adjoining survey and natural monument be called for by the younger, and no lines be found on the ground, then the lines returned into the land office determine the location.”
In the main this statement is correct, and strictly so in reference to the case then before the court. But in the numerous cases falling -within the scope of the statement there are some shades of difference which the case now before us is calculated to bring into view, and which the judge, delivering the opinion, doubtless had in his mind, as may be noticed in the remark immediately following, referring to the case of Henry v. Henry, 5 Barr 249, and Ormsby v. Ihmsen, 10 Casey 470. In Henry v. Henry, the line of the junior survey called for two courses of the older, but it was a single straight line, while between these two courses the older survey had two lines retiring from the junior, leaving a triangular piece of ground, the subject of controversy. Had the surveyor, in making the junior survey, intended to adopt the lines of the older, it is plain he would have made two lines upon his draft corresponding to the older, and not a single line, as the junior survey was returned. Coulter, J., remarking upon this, says : “ If one survey calls for the lines of another survey, it is not necessary that they should be marked *430over again on the ground. But the survey must describe and adopt them.” It does not appear that the line of the junior survey in that case was found marked upon the ground, except so far as (it being a single straight line) the courses called for of the older survey constituted marks. This is a seeming exception to the second branch of the rule stated by Justice Woodward, and yet it is not so in principle, but carries a shade of difference with it. There the court held a junior survey did not extend to the older, but the reason manifestly was because the evidence upon the face of the junior survey was convincing that the surveyor did not intend to adopt the two lines of the older survey, and therefore did not describe and return them. But it would not be a correct conclusion from this decision, to say that a junior survey cannot be extended to meet the lines of an older unless it describes and returns them. Undoubtedly, when the evidence upon the face of a return of survey shows the intent to locate adjoining to an older survey, the mere difference between the official courses and difference in the two will not alone prevent them from adjoining.
Ormsby v. Ihmsen, 10 Casey 452, in principle is really very much like Henry v. Henry, though the judge who delivered the opinion did not place it exactly upon the same ground, but rather upon the conclusive presumption of a survey on the ground, according to the official return, arising after twenty-one years. The court below, in that case, undoubtedly erred in holding that, although the presumption of an actual survey had arisen from lapse of time, yet it might be negotiated by a failure to find marks where marks should appear; yet I am not sure that "a conclusion might not be drawn, from the language used in discussing the case in this court, foreign to the meaning of the judge who delivered the opinion. While it is a conclusive presumption, after twenty-one years, that a survey was made upon the ground, in opposition to the allegation of a mere chamber survey, yet it is not conclusive in all cases that it was made precisely as returned: Mock v. Astley, 13 S. & R. 383 ; Caul v. Spring, 2 Watts 393; Schable v. Doughty, 3 Barr 393. Indeed, in every case where the marks or monuments of the survey are found upon ground, though differing from the return of survey, they control it. So, where upon the face of the survey as returned, there is evidence that the lines of an adjoining survey were adopted, and no marks to the contrary upon the ground appear to control this manifest intent, the junior survey will close up to it, notwithstanding there be a difference in the courses and distances, and more than twenty-one years have elapsed; and this is the rule stated in general terms, laid down in the second branch of the statement of Justice Woodward, in Quinn v. Hart. It was there clearly not the intention of Justice Strong, in *431Ormsby v. Ihmsen, to hold that the line in question there, viz., “by the land of John Ormsby, S. 76 E. 148½ perches,” was conclusively to be placed upon that exact course because twenty-one years had run, but simply that the presumption of the survey as returned by that line was not to be rebutted by mere negative evidence, that no corresponding marks could then be found. The true reason, then, why the call for John Ormsby’s land was controlled in that case by the official return, like Henry v. Henry, is to be found in the fact that upon the face of the return there is evidence to show that the call was a mistake. The survey of “.Bergen op Zoom,” at that side, called for a single straight line from the land of Oliver Ormsby to that of Charles Smith, while part of the land of Oliver Ormsby lay beyond the line before John Ormsby could be reached, and beside John Ormsby’s land lay that of Barney Hall, not called for in the “Bergen op Zoom” survey, but which must also adjoin if the land of John Ormsby adjoins. In order, therefore, to adjoin John Ormsby, the survey must have three lines instead of one, a new adjoiner not called for, and the corner trees at each end of the single line must be rejected, viz., a post and sugar tree, and a black-oak called for upon the return of survey. Both these cases, instead therefore of being exceptions, and not squaring with the rules stated in Quinn v. Hart, really furnish us with the elements merely of an additional rule, and that is, where, from the return of the survey itself, we can discover that the call for an adjoiner is a mistake, even though no line can be found upon the ground corresponding to the line as contained in the return, the call may be controlled by the line as returned, and the other evidences of location contradictory to the call.
The present case is a clear illustration of the fitness and necessity of the rule. The surveys in the names of William Gilbert, Isaac Miller, Isaac Taylor, Jesse Evans, and Jesse Brooks, were all made on the same day by the same surveyor, and for the same person, Dr. Huston, and located together in one block by exterior marks on the ground. They are not therefore to be judged of' by the familiar rules which apply to block surveys, as contributing in the act of survey parts of a single whole. They present this peculiar and remarkable feature, though a single block they are not solid, but appear upon their own face to have been surveyed around another ownership called “Starr,” this interior space being a rectangle, whose opposite circles are 320 and 212 perches respectively, and containing 424 acres, to wit, 400 acres and allowances. This rectangle called “ Starr” is bounded on the east by the William Gilbert and Isaac Miller surveys, each calling “ Starr” on their west, and together making 320 perches — by one leg of the Isaac Taylor survey on the south 212 perches — by the other leg of Isaac Taylor (Isaac Taylor *432being L shaped), and by Jesse Evans on the west, together making 320 perches — and by the Jesse Brooks survey on the north 212 perches. These several surveys all call for “ Starr” on the side adjoining the rectangle. This also appears by converting the surveys as returned, the space called “ Starr” having been manifestly left by the surveyor in surveying around it to answer some prior title. These surveys were made for Dr. Ruston on the 17th October 1793.
On the 14th November 1805, a survey was made on a warrant in the name of Merrick Starr, dated the 31st March 1774, descriptive to a general intent, but not so precisely as to fix its boundaries or their number. This survey recited a former, as having been made June 9th, 1775, but no marks have been found to correspond with any such survey, none reaching beyond the date of the resurvey. The figure of the survey consists of sixteen sides, including a long, narrow neck connecting its main parts, and lies almost wholly upon the Isaac Taylor survey, very little of it occupying the space called “ Starr” in the block of surveys. The Isaac Miller survey, the one upon which this controversy arises, lies, according to its return, at the south side of William Gilbert, cornering with it, and bounded east and west by the same straight lines. The north-west corner of the Gilbert survey is found upon the ground, its location being fixed beyond dispute. The southern boundary of the Isaac Miller consists of five courses and distances, to conform it to an older survey in the name of Lawrence Johnson, the lines of which, as well as marks on the Isaac Miller survey, locate the southern boundary of the latter beyond controversy. The eastern boundary of Miller and Gilbert, the same continuing line is also fixed. All this is indisputably proven by the testimony upon both sides. The plaintiffs in ei’ror ask that the western boundary of Isaac Miller shall be extended westwardly to the survey of Merrick Starr, made in 1805, a distance of nearly two hundred perches, thereby lengthening the southern boundary almost a hundred perches, and making its western boundary to consist of three ■courses and distances instead of one.
From the description of these blocks of surveys already given, it is manifest this cannot be done, and that “ Starr,” as marked on the five several surveys, is a mistaken description. But I may state more distinctly, as reasons convincing us of a mistake upon the face of the surveys themselves, that being all made at the same time by the same surveyor, and for the same owner, such survey is entitled to the application to it of the same rule. What right has Isaac Miller to ask to be carried west more than William Gilbert, or more than Isaac Taylor to go north, or James Brooks to come south ? Jesse Evans, by no possibility, can ever reach Merrick Starr, for Isaac Taylor lies between, and on the *433south, while Evans calls for “ Starr” on the east, Jesse Brooks is still further off with Evans and Taylor between, on half his southern boundary, which must be broken and deflected down to the open space to touch only a small corner of Merrick Starr. The name “ Starr,” the open quadrilateral space left by the calls of the five surveys containing four hundred and twenty-four acres, instead of a sixteen-sided .figure containing but one hundred and seventy-nine acres, lying almost wholly on the Isaac Taylor survey; all prove conclusively, upon the face of the returns, that the surveyor who located the five warrants of Dr. Ruston, had no knowledge of the Merrick Starr survey, never intended to adopt it, did not adopt it, and could not possibly conform to it in the manner in which he located them. All that he did was to leave a sufficient quantity of land to answer the warrant, which was descriptive to a general extent, and therefore entitled to a priority of location, according to its description. But the call for a space to file a descriptive warrant is very different from the call for a survey by lines. The five warrants and surveys were official papers, while the proof of their actual location everywhere else, except at the western boundary of the Isaac Miller survey, was not disputed. The court was therefore justified in instructing the jury upon such a state of facts that the call for “Starr” was.a mistake, and to be disregarded.
In argument, it was said this was a block of surveys, to be located by its exterior lines, and therefore it is a solid within, which must close it up to the lines of the Merrick Starr survey. But this is an oversight of the true character of the fact, that the “ Starr” lines are exterior to the block. It is not the case of a solid block surveyed around another ownership, in which the lines of the ownership thus enclosed are as much exterior to the block of five surveys as those lines are which surround the whole.
This disposes of the case, for in this view of it the error assigned to the rejection of the testimony as to the possession from 1814, under Valentine Brobst, is immaterial. If an error, it did no injury. The title, under the survey of Isaac Miller, did not cover the disputed territory, and a mere possession without residence could give no title, while the presumption supposed to arise under the Act of 1855 was clearly and distinctly rebutted by the surveys and undisputed evidence of location, which showed that the alleged possession under the title of Brobst, to the Miller warrant and survey, could not extend that title to the land in dispute.
The judgment should be affirmed.