Smay v. Smith

The opinion of the .court was delivered by

Huston, J.

The executors of Dr. Smith, who were plaintiffs in the common pleas, claimed the land in question on two warrants unsurveyed ,and returned into the office of the Surveyor General. One in the name of Dr, Smith, dated the 7th April, 1792, for one hundred acres of land near the the thirteenth mile tree, on the road from Frankstown, including the “Dollar Camp;” another in the name of Rebecca Blodget, (a daughter of Dr. Smith,) dated the 21st of December. 1792, for three hundred acres, adjoining land warranted to William Smith, D. D, at a place called the “Dollar Camp.” After giving in evidence these two warrants, the plaintiff offered the deposition oí Thomas Vickroy, which was received and exception taken, then the testimony of S. Lloyd, which was admitted, and then .the return of the survey by William O’Keefe, deputy surveyor, under seal oí office* which was rejected, because as was agreed here, -the certificate at the foot of the draft returned, stated the above •£© be a copy of a survey, made in 1794, by G. Woods, &c. and examined and surveyed by William O’Keefe, deputy surveyor, in 1808, and that the par| of the certificate which states what G. Woods had done, was no evidence.of the fact stated. Be it so — it was still evidence of what was done by the deputy surveyor who returned it, and should have been received as evidence of a survey in 1809 — this being rejected the defendant gave, no evidence — it had been proved he was in possession, and the court. charged the jury that they might find for the plaintiff; they did so, and Smay has brought this writ of error.

There is in the objections an over acuteness, not usual in our courts, and which I shall proceed to state.

Vickroy’s deposition proved that in 1794, he went and saw the outlines of the survey in question, and many other surveys for Dr. Smith, as run by P. Cassidy. That Vickroy himself, at the instance of Dr. Smith, al different times run the division lines, and particularly run and marked all the lines of the surveys in question, (a draft of which, shewing the courses, distances and corners, he annexed to his deposition,) that having completed all the work, he in 1808 gave his field notes and drafts,to Mr. O’Keefe, who returned the surveys. Lloyd and others proved that shortly before the trial they examined the lines on .the ground, and found the survey accurately made, .and the defendant living within it. Vickroy and others proved the .thirteenth mile tree on a .road from Frankstown to Conemaugh, and the “ Dollar Camp,” a place so called and well known, to be included in the plaintiff’s survey. There was.a cross examination at the time of .taking the deposition- The objections to it were, that it was not proved that P. Cassidy w.as an assistant of G. Woods.. That it was not proved .that Thomas Vickroy, the witness, was an assistant of G. Woods. That he was .not ,an .assistant of O’Keefe’s. That the land was not in O’Keefe’s district. And.that Vickroy did not return with his deposition a draft of all the work done by P. Cassidy and himself. And next that if Vickroy had no authority to make the survey, it was useless to prove the existence of the lines on the ground, by Lloyd.and others.

There is .a rule of evidence that a party shall produce the best evidence which the case admits of. ,In practice, however, there are very many exceptions. Where a deed is acknowledged, ,or a deposition ¡taken before a man who states himself to be a justice of the peace, the deed is recorded,or read .in court,.and sois a deposition, though we have not the best evidence, hr .any .evidence that the man who certified it was.a justice of the peace. Copies of the returns of surveys under seal for the Surveyor General’s office, a.re and have been received, and the commission of the deputy surveyor who made them is not asked for, any more than the justices of the peace ahove stated. The boundaries .of a surveyor’s district arc also taken from .report, as w'ell as the fact of his being a deputy surveyor, if either is .contested, .notice is given before .the trial, or the party contesting the authority, comes with a copy of the commission to some other person, and with proof that the land was actually out of the district. So the commission .o.f a sheriff or proof that the writ -was executed within his .county is not required — if denied, the truth may be enquired into. The sheriff and deputy surveyor generally have assistants, and the authority to the deputy sheriff, or assistant to the surveyor, is scarcely ever in writing, I will say .never where the person is generally employed.. If a man who has never been engaged to make a survey for the officer, is wanted to make a single survey, he may be requested in writing. In some instances there are several persons who .act as assistants to the deputy surveyor, and when they continue to act in that capacity for a long time, this is as generally known as it is known who is the deputy surveyor of the county.

Where it can be proved or is admitted that a man acted as an assistant surveyor, and the survey is returned, as was the case here, it never was required to prove a special authority to do that act. General reputation that a man acted as an assistant to a former deputy surveyor, or pro.of.that many drafts or field notes remaining in the office are in the hand-writing of a particular man, are evidence that he was an assistant. In 7 Serg. & Rawle, 317, the law is not laid down, hut rather what has been the us,age op this subject: and see 6 Serg. & Rawle, 137. Perhaps every* pan jn that court hopse knew that G. Woods was the deputy surveyor of Bedford county, in 1792, and that the presept county of Cambria was a part of that county in the same year. It was as well known thirty years ago that Cassidy and Vickroy had been assistants of G. Woods, as that G, Woods had b.e.en deputy surveyor of Bedford county. If Vickroy had said in his deposition that he and Cassidy had been assistants to G. Woods, it would have been legal evidence of it; so if any person in the court h,ad proved that they were known and reputed as such. Palpably the deposition was taken without .a ¡question on this subject, because it was supposed to be too well known to be denied. - If it had been necessary in the cause I would have directed the jpry that they might fairly infer if. from the .testimony given. Vickroy also proved that he gave to O’Keefe tire drafts, &c. from which the return was made — now the fact that O’Keefe returned a survey made by Vickroy, or any other person, was ,a ratification of it, and .after this, it was totally immaterial whether there was a precedent authority to make it or not. There was then, unless contradicted, and if believed, evidence of the survey being legally made.

I.t would then seem unnecessary to discuss the point 'whether in any case or in this case, an ejectment can be supported on a warrant without a survey. Clearly there are case.s where ,a man may bring an ejectment on a waprppt without any survey of the same land, each a warrant of his own: the deputy surveyor pipkes the survey for one, the other enters .a c.ave.at, the board of property decides, .as the deputy surveyor did, the .other is not without his redress he may bring his ejectment, and recover the whole or a part of the land which is in dispute; the fifth section of the limitation act, of the 26th of March, 1785, in fact s.upp.os.es an ejectment on a warrant on which no survey has been made. There was a radical mistake in rejecting the return of survey by O’Keefe, b.u't this was in favour of the party who has taken the writ of error, he, however, says that prevented him from going into-a full defence; be it so, we must take it as it appears to us. There was another objection namely, that Vickroy in his .deposition spoke of lines run and surveys made by Cassidy and himself, and did not annex a draft of these lines or surveys, but he .annexed a draft of the tract in question, .It did not appear, nor is it .alleged that any other part of the work was material — besides having closed his testimony, .and annexed his draft, the defendant cross- examined the deponent and did not ask for any other or further draft.

Judgment affirmed.