— The decision of the Court was read by
Green, J.The assignments of error in this case all relate to the charge of the Court.
There are none to the admission or rejection of testimony or to answers to points.
In the main the complaints are rather to the manner and character of the utterances of the judge in his charge than to erroneous statements of the law. Without doubt, some portions of the charge are fairly subject to criticism, and in several instances, language used might well have been omitted or modified. After a patient examination, however, of the several assignments we have reached the conclusion that none of them are sustained by considerations sufficient to justify a reversal, and the judgment will therefore be affirmed. We will dispose of the assignments in the same order as they are presented in the paper books.
First Assignment. — The plaintiff gave in evidence the proceedings of the board of property showing the rejection of the return of survey of the ten acre warrant, and the refusal to issue a warrant on the two hundred acre application. The learned judge, speaking of these proceedings, and of the point raised by the defendant which was refused, remarked that the decision of the board was competent evidence but was not conclusive. No effect upon any right of the plaintiff was given to the proceedings of the board by this remark. The full right of recovery was allowed, just as if those proceedings had not taken place. In the very next sentence the Court told the jury, that the plaintiff had a *44right to bring suit within six months, and have his claim tried by a court and jury.
The proceedings having been given in evidence by the plaintiff himself, it was certainly not error for the Court to say that they were competent evidence though not conclusive.
Second, Assignment. — This assignment is scarcely pressed and certainly has no merit. The judge merely stated an allegation that the shifting of the location in accordance with the plaintiff’s theory would leave valuable land vacant, and subject to be taken up at a very low price. As this would be true in fact, we cannot say it was error.
The Third, Fourth and Eighteenth Assignments. — The statement by the judge of the law as to the duty of the surveyor to go upon the ground and mark his survey, and of the legal presumption that he had done this, was certainly correct. It is equally correct tq say that no mere assumption, or guess of a surveyor is sufficient, to set aside the presumption. The remark was general and was harmless, if there were no assumptions or guesses in the plaintiff’s testimony, but if there were, it was entirely appropriate. It was not in the best taste to refer to William Piper, the original surveyor, as having been a member of Congress and of the Pennsylvania Senate, since those positions would add nothing to his qualities as a surveyor, but it is surely not error to refer in speaking of a witness to the fact that he has held certain offices. The Court also said in the same sentence that Mr. Piper had also held, for several years, the office of deputy surveyor, which was more to the point. What was said by the judge as to the insufficiency of theories, assumptions, and guesses to destroy the effect of a survey and to prove mistakes in it, was entirely correct in the abstract. We cannot say there was no necessity for such remarks from the Court. It was undoubtedly true that an effort was made by the plaintiff to establish mistakes in the location of the Bunn warrant, by the use of certain theories and suppositions advanced by his surveyors. If these were not well founded, or if facts in the case sustained by testimony or legal presumption were in conflict with them, the remarks of the judge were appropriate and were demanded by the occasion. If the opinions, theories, or assumptions of the surveyors were well founded, their value depended upon the facts on which they were based, and it was proper for the Court to say so. The judge did not say that the plaintiff’s testimony consisted of “ suppositions, assumptions, and guesses,” but that so much of it as was of that character, was insufficient to destroy the return of survey unless supported by facts.
*45It was the undoubted fact that Piper’s return of survey to the Bunn warrant did call for the Bollman on the north, and by the same course and same distance as the southern line of the Bollman, and it was also the fact that Piper made both surveys and at very nearly the same time. This condition of these two surveys was absolutely fatal to the plaintiff’s case, since his claim was for land lying between these two lines and required them to be a wide distance apart. Surely if such a location as was indicated by the returns of the Bollman and the Bunn was to be defeated by opinions and theories, whether in whole or in part, it was essential that those opinions and theories should be supported by facts, and by facts clearly established.
We think this is the fair construction of all that the Court said in this connection. What was said about the effect of surveyors’ opinions generally must be taken as relating to the ■ same subject matter, and not as a declaration ihat the opinion of a surveyor is of no value, even as to matters of opin-' ion only, except when based upon facts actually proved to e-xi-t.
All this is true of the Sixth Assignment, which is of kindred character.
What was said about the number of witnesses, and the weight to be attached to or withheld from their testimony, is entirely correct. The remarks in question were not made about any particular part of the case. On the contrary they were general in their’character and were in immediate connection with, and a part of, general suggestions to the jury respecting the importance and complicated character of the case, and the nature of the duties devolving upon them. These latter constitute the substance of the Fifth Assignment which certainly'is without merit. The Court made no reflection upon counsel on either side. The remark in relation to counsel refers to those on both sides, and was in no degree derogatory to either.
Although the Seventh Assignment is pressed with earnestness we see no substantial merit in it. It consists of three sentences of the charge, the correctness of the first of which is not even questioned. In the second the Court used the word “ dare,” when perhaps “ should ” or “ may ” would have' been more suitable, and alluded to the fact that some of the surveyors seemed to have assumed that Piper had neglected his duty or made mistakes. In the third sentence the judge said that Piper probably knew more about surveying than some of the witnesses who had ventured opinions. While this remark may have been entirely correct in fact, we think it was uncalled for and inappropriate. But that does not *46make it error. It was at best tbe expression of a probability, the plaintiff’s witnesses were not named or necessarily referred to, and the subject was not material. It cannot fairly be regarded as an attack upon the plaintiff’s witnesses, as is contended in argument.
Eighth and Ninth Assignments. — The judge, in a considerable portion of the charge immediately preceding the parts complained of in these assignments, had pointed out certain material discrepancies between the survey of the Bunn, as located by the plaintiff, and the return of survey made by Piper. No exception is taken to this part of the charge, and an examination of the testimony proves it to be a correct presentation of the matters therein developed. This being so, it seems to us very material and appropriate for the judge to present the suggestions and inquiries contained in the portions assigned for error. We have not been able to discover any satisfactory answers to them, and the learned counsel for the plaintiff do not indicate any. We think they overestimate the language of the Court as being an attack upon their witnesses, or "as being charged with feeling or heat.
Tenth Assignment. — The learned judge had just said that both sides claimed that the call for “ surveyed land ” on the west was filled by their respective locations, one by the Sipes and the other by the Chevington, and that the Chevington was considered a lost survey. Of course if the Chevington was an obscure or lost or uncertain survey, it would be natural that Piper, eleven years afterward in surveying the Bunn’ should simply call for it as “ surveyed land.” The same would be true of the Sipes survey if it was of the same character, but there was no allegation that it was. On the contrary, it appears to have been a well-known survey without question as to its lines. The judge did not say there was any evidence that Piper had ever seen the draft of the Sipes survey or knew the survey by that name, but he did say that if Piper knew it and intended to adjoin it, he would naturally have named it as an adjoiner; and that it would be singular if he did not. This is ail true, and the Court might well have completed the inferential process by adding that if the Sipes survey was unknown to Piper, he would in that event also have called for it as “ surveyed land.” It probably did not occur to the judge to present this additional hypothesis, simply because the well-known and well-marked character of the Sipes survey seems to have been taken for granted throughout the trial. Full fairness would have been subserved by the addition we have suggested, but we cannot say its omission was error.
*47Eleventh Assignment. — We think the learned counsel for the plaintiff have placed a more extreme construction upon the language of the charge here complained of than was intended by the Court, or than can be fairly inferred from the words used and the context. We do not understand the Court as saying that it was not possible, in any circumstances, to detach the Bollman from the Bunn, because both surveys called for the Lane improvement. The judge was evidently meeting and answering the argument, that the Bunn adjoined the Lane, because the Bunn survey called for the Lane, by the reply that the same reason would carry the Bollman also to the Lane, since that survey called for the Lane, on a mere continuation of the same line which on the Bunn survey called for it. A mere inspection of the two returns of survey proves this to be entirely correct, and we are quite clear that this is the true interpretation of the language of the charge. The question was what was Piper’s meaning in calling for the Lane on the Bunn survey ? If he certainly and absolutely meant 'that the Lane did adjoin the Bunn on the line N. 55 E., as indicated on the draft, then he did just as certainly and absolutely mean that the Lane also adjoined the Bollman on its line N. 55 E., as the latter was a mere continuation of the former. The next two succeeding sentences of the charge clearly prove this to have been the meaning of the j udge, and these are not assigned for error. The language covered by the Twelfth Assignment demonstrates that the Court did not say or mean to say that the Bunn could not possibly be shifted without also shifting the Bollman, because that very question is there presented. Thus the learned judge says: “ If then the call for the Boll-man is the stronger and governing call, the next question is, is it controlled by definite and clearly marked lines on the ground which will carry the survey away from the Bollman and abut it on the Lane?” He then adds that if the jury cannot give the survey all its calls, and if the call for surveyed land on the west is better filled by the Chevington than the Sipes, “ then there remains the question whether the plaintiff has found marks which must control the return of survey, govern the call, and draw this tract over to the Lane and away from the Bollman.” There is not only no error in this, but it is conclusive proof that the portion of the charge covered by the eleventh assignment is not properly subject to the criticism made upon it.
Thirteenth Assignment. — The judge did not say that the chestnut block counted seventy-five growths, or give any direction to the jury that they should so regard it. On the contrary, he expressly told them that there was great con*48flict of testimony in regard to the blocks, and that they could take them and count them. He added that he had counted only one of them, and that he could count seventy-five growths on that one, and that there was no obscurity of growth in it. The block was a tangible, visible substance, and was itself given in evidence. Of course every juror was at liberty to count it, as were also all the counsel and the judge, each of whom could state the result of his own count. What the actual count was remained for the jury to determine. We cannot say the judge was in error when he said he could count seventy-five growths, as the block is not before us, and if he stated the fact correctly he certainly committed. no error.
• Fourteenth Assignment. — As the oral statement and arguments of counsel on the trial are not printed, and are no part of the record, it is of course impossible for us to say that the Court was in error in saying that it was insisted on either side that the block in dispute as to its genuineness, should be opened. We assume that in fact it was not opened, as no contrary allegation is now made.
Fifteenth Assignment. — The testimony quoted in support of this assignment does not convict the Court, in our judgment, of either suppression or perversion of evidence. None of it goes to 1806, or indicates that the improvement covered more than a quarter of an acre. As to its going beyond 1835, the assignment cuts in two the sentence of the charge on that subject, and alleges error in the first clause but not in the second. Now the second clause supplies what appears to be claimed as the error of the first, to wit, an implication that the evidence of this improvement does not go back of 1835. The part assigned as error is in these words : “The. earliest evidence is in 1835.” The remainder of the sentence which is not assigned says: “ Then Long, who first saw it at that time, says it was an old-looking building, a story and one-half high, with a door in it, and used by a man named Snow, who was engaged in coaling,” etc.
Sixteenth and Twentieth Assignments. — We cannot say there is error in the statement, “It is by no means sure that roads and streams are not quite as important as trees.” . . . “ They may be better.” The relative value of these indications would depend largely upon their greater or less correspondence, in the given case, with their representations on the official survey. In the present case it must be confessed there is great difficulty in reconciling the road and stream appearing on the official survey of the Bunn, with the survey of the same tract as the plaintiff locates it. Again, *49trees may not be always marked so as to speak with absolute ‘certainty, and there is often grave question as to the identity of such as are claimed to .have received the original marks. Of course an interior stream is of less importance than a boundary stream, but that consideration does not establish error in the remarks covered by these assignments.
Seventeenth Assignment. — We think the concluding sentence of the language here complained of might well have been omitted While the sentiment it contains may be a legitimate deduction from the precedent reasoning, we think it lacks the dispassionate calmness with which, as a general, rule, judicial utterance should be made. The expression, “ quintessence of stupidity,” might have been clad in choicer phrase, but that is a matter of taste. However these things may be, the substance of this portion of the charge is within the warrant of the testimony. The judge was commenting upon the feature of the case developed by the Lane improvement. This also was surveyed by William Piper in 1809, three years after he surveyed the Bunn. His return does not call for the Bunn on the north but for Bay’s Hill. That survey certainly does seem to interfere largely with the plaintiff’s location of the Bunn. The suggestion that it would make three lines where one only would be necessary or probable is of force, and we cannot say it was overestimated by the Court. The observations relative to the line of the Moyer, N. 86 W., do not require comment. It was manifestly and admittedly a mere error in writing the letter N. for the letter S.
Nineteenth Assigmnent. — The judge did not say that the old dead pine was a corner of the Bunn. He simply said, after stating that both the chestnut and the pine were disputed, that the weight of the evidence was, if Ketterman and Sams were believed, that the “pine is an old marked corner.” As these witnesses did so testify we see no error in the language of the charge. We are not referred to any testimony of the plaintiff’s surveyors, and have not been able to find. any contradicting the pine as an old marked corner.
We do not think the charge as a whole is answerable to the objections of the Twenty first Assignment. As to the manner of the judge in delivering the charge, it is not and cannot be, before us, and hence we cannot review it. If it were in truth of the character alleged, which is denied, it would-certainly be reprehensible, and deserving of condemnation by a court of error. It is rarely that such complaints are made, and there ought never to be an occasion for *50them. We are, however, powerless to afford relief for grievances of that kind, by the ordinary method of assignments of error.
Judgment affirmed.