having stated the title, the arguments of the counsel, and the Court’s charge, delivered his opinion as follows:
It appears very clearly to me, that the charge delivered to the jury was? right, and that the principle contended for by the plaintiff cannot be supported. The instructions from the proprietaries to the deputy surveyor, were that not more than ten per cent, surplus (exclusive of six per cent, for roads, &c.) should be returned on any warrant. Maclay therefore would have broken his Instructions, if he had returned ISO acres on Mackey’s warrant for SO acres, or 400 acres on Janet Sharon’s warrant for 300 acres. But if such return had been made, and the error discovered by the surveyor general, it might have been sent back with orders to correct it. Or if the proprietaries’ officers had thought proper, they might have accepted the survey, and charged the warrantee with the price of the surplus. How then can it be said that Maclay is estopped from shewing the mistake? If the land had belonged to him, there might be some colour for the argument!- but as it was the property first of the late proprietaries and then of the Commonwealth, an estoppel of the kind set up would be depriving one man of his property for the negligence o.f another. If Indeed, Maclay had been guilty óf a fraud, with a view of securing this land for himself, there might be good reason why he should not have it, although it would be open to other persons. This the judge told the jury, and in saying so he went far enough. For if Maclay meant to do justice both to the proprietaries and- Mackey, and really made a mistake in his return, there would be no reason why upon the xüistake being corrected, he might not take up the land as well as another. There was a good deal more evidence. *42which I have not mentioned, because although it might have ' had weight with the jury, it need not be taken into consideration by this Court, before whom the only question is, whether the cause was properly submitted to the jury. In a case of this kind, where the plaintiff insists on abiding by the return of survey without enquiring into errors, it is worthy of consideration, that before there was a confirmation of this survey by patent, the land in dispute had been granted to Maclay. Now it is certain, that before a patent had been granted to either one or the other, the board of property might have enquired into the whole matter, corrected errors, and done justice to all parties. The charge of the Court placed the cause before the jury, just as if it had been before the board of property, and I do not see what more the plaintiff ought to have desired. I am therefore of opinion that the judgment should be affirmed.
Yeates J.The plaintiff claimed under a warrant issued to Robert Mackey for 50 acres of land, dated 29th June 1772, and a survey made thereon 15th June 1774, said to contain 77 T~ acres and to adjoin the proprietary manor, Janet Sharon and John Cummings. James Potter, Esq. made use of Mackey’s name in taking out the warrant. Previous to the survey, Mackey on the 9th April 1774, executed to Potter a deed poll for a'nominal consideration without specifying any quantity of land; and in like manner on the 1st of June 1794, Potter conveyed to Thomas Gordon, in consideration of 80l. On the 22d of November 1796, Gordon conveyed to Thomas Spencer, the survey made in the name of Mackey, and some adjoining lands claimed by improvement, supposed to contain 170 acres more or less, and Spencer, on 23d November 1798, entered into articles of agreement with John Werdman the plaintiff, describing Mackey’s survey particularly. The sole question was, whether this survey included the lands in controversy? If it so included them, it was admitted upon the trial that the verdict ought to have been rendered for the plaintiff in error.
The plaintiffs’ great reliance rested on the grounds that this survey, as returned by William Maclay, and also his field notes thereof, called for a beginning post, a corner of Janet Sharon and the, proprietary tract, and that the survey on Sharon’s warrant, which was the property of Ma~ *43day, also called for Mackey as the adjoining tract. It is insisted that it was not competent toMaclay, or any persons claiming under him, to allege and contest that the two surveys did not adjoin each other.
It was in my idea properly submitted to the jury, by the president of the Court, as a fact for their decision, whether these returns were occasioned by mistake and over-sight, whether the acts of the deputy surveyor .were tainted by design and fraud, or whether the actual survey made on the ground for Mackey, really comprehended the tract in dis- . pute.-
It has often been determined by the judges of this Court, that the appropriation of vacant lands by survey to individual use, is founded upon what in truth has been really transacted on the spot by the surveyors. A return of survey may be erroneous, either in the courses or distances, or the adjoining land which it represents. It may be corrected by natural or artificial .boundaries, or other plain circumstances, clearly shewing that the survey as returned ought not implicitly to govern. It would be going a most unwarrantable length, to assert that the inaccuracies or mistakes of deputy surveyors as to the position of lands, supposed to adjoin other ' surveyed tracts, should operate conclusively, either on the late proprietaries or the Commonwealth. The most that can be said of a return of survey, is, that it shall be presumed to be correct throughout, until the contrary be clearly shewn; and I will readily admit, that this principle should most strongly hold, in cases where the surveyor himself would avail himself of a supposed mistake, for his own advantage. We are taught by experience, that the prejudices of jurors, in such instances, run strongly against the artists.
■ From the detail of the evidence which accompanied the charge, it appears that strong circumstances existed in this case, from whence it might fairly be inferred that an unintentional mistake, free from all fraud, might be ascribed to the deputy.
The real distance between Clemming’s and Sharon’s lines is found to be nearly 190 perches, instead of 90 perches, marked in the draft; and if Mackey’s survey is to adjoin Sharon’s, the area of the former instead of being 77^%-acres, would exceed 150 acres. Besides, Mr. Potter,- who *44took out the warrant, and held the land above twenty years, never set up a pretence to this large overplus. When he was about selling, he claimed about 80 acres under his survey. And the plaintiff himself, who executed his own warrant of 20th November 1784, lays down the survey made thereon, as occupying the intermediate space between 3Iackey and Sharon. His claim under this title he now prudently abandons. Moreover it appeared unquestionably, from the field notes of Maclay, that the lands originally surveyed under the warrant of Sharon, (the lines thereof .corresponding with the draft returned in every particular,) comprehended the lands for which the ejectment was brought, and actually included 100 acres more than were afterwards returned on it.' There was a strong probability therefore, that Maclay threw off that surplus quantity, under an apprehension that the return of the whole would not be accepted in the office of the surveyor general. If he had adhered to this large survey, there could have been no pretence of claim under Mackey to the lands in question; and by taking out a new warrant in his own name on the 1st July 17S4, for the lands thus thrown out, procuring a survey to be made in October following, and patenting the lands on the 2d September 1790, he conferred no additional efficacy on the survey theretofore made under the right of Mackey. Mr. Potter did not feel himself aggrieved thereby, but he and the different proprietors of Mackey’s warrants, by their several transfers recognized the survey made for Maclay under the warrant in his own name, and made no pretensions to the lands in controversy.
It forms however no part of our duty to determine, whether under this combination of circumstances, the jury were justified in finding that the survey of Mackey excluded the lands in dispute. If they returned a verdict against the weight of evidence, the legal appropriate remedy of the plaintiff was an application to the Court of Common Pleas on a motion for a new trial, when the just discretion of the Court would be exercised. We are called upon to pronounce whether that Court erred in submitting the extent of Mackey’s survey to the jury, as a question of fact to be decided by them, or whether the same was exclusively the province of the Court as a matter of law. For the reasons *45I have given I am clearly of opinion, that the Court have decided correctly on the occasion, and that the judgment of the Court of Common Pleas be affirmed. '
Brackenridge J. was prevented by sickness from hearing the argument.Judgment affirmed.