ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
MR. JUSTICE LAMAR delivered the opinion of the court.
This is an action of trespass quare clausum fregit for timber felled and carried away, originally brought in the Common Pleas Court of Bradford County, Pennsylvania, where, after certain amendments of the record with respect to the parties thereto, the case stood as Elisha A. Packer, Plaintiff, v. The Schraeder Mining and Manufacturing Company. A judgment of that court, on a verdict in favor of the defendant, having been reversed by the Supreme Court of the State, and the case remanded for a new trial, (97 Penn. St. 379,) and three other verdicts having been set aside by the trial court, the case was, on application of the plaintiff, removed into the Circuit Court of the United States for the Western District of
Pennsylvania on the ground of diverse citizenship of the parties.
The declaration averred that the defendant, by its agents and employes, entered upon plaintiff's lands in the years 1867, 1868 and 1869, and cut down and took therefrom over two millions of feet of timber, amounting in value to $15,000.
The defences pleaded to the action were (1) that defendant did not commit any of the trespasses complained of on plaintiff's land; (2) that the land on which the alleged trespass was committed did not belong to the plaintiff, but was the property of the defendant itself. It was also contended by the defendant that the plaintiff, through his agent, had aided, by consent and acquiescence, in establishing a boundary between the two contiguous tracts of the parties, up to which he, the plaintiff, agreed that defendant's agents and officers could cut and carry away as much timber as they pleased. Issue having been joined upon these pleas, the case was tried by a jury, resulting in a verdict in favor of the plaintiff for the sum of $8000, upon which judgment was rendered. The defendant sued out this writ of error.
Upon the trial the plaintiff, in support of his claim to the land in dispute, introduced evidence deducing his title from a warrant granted by the Commonwealth of Pennsylvania to one George Moore, for a tract of 375 acres of land. The official return shows that the warrant was issued on the 27th of April, 1792, and that the survey was made for the said George Moore on the 21st of November, 1792. The survey is thus described in the official return:
"A certain tract situated on the waters of Towanda Creek, Luzerne County, beginning at a post; thence by land of Joseph Betz and Henry Betz north twenty-nine degrees east, three hundred and eighteen perches to a hemlock; thence by vacant land north sixty-one degrees west, two hundred perches to a post; thence by the same and land of General Brodhead south twenty-nine degrees west, three hundred and eighteen perches to a post; and thence by land of Samuel Cooley south sixty-one degrees east, two hundred perches to the beginning, containing three hundred and seventy-five acres and allowance of six per cent for roads," etc.
As evidence to show that the land in dispute is part of this George Moore tract, the plaintiff produced copies of the returns of these surveys, called for as adjoiners, the location of which, it is claimed, was fixed by the evidence beyond dispute. And in connection with that evidence he called several surveyors, who gave testimony, with maps and other returns, tending to show, by identifying the hemlock northeast corner, and other marks on the ground corresponding with the survey, that the Moore tract, located according to its calls, embraced the land in dispute.
The defendant, on his part, introduced evidence to show that the land in dispute was a portion of a tract of about 409 acres, surveyed March 24, 1794, in the warranty name of Andrew Tybout. He introduced a copy of a warrant and return of the Tybout tract and a patent from the State to one Daniel Brodhead for that tract. Evidence was also given by defendant showing that original marks were found on certain trees on the north, east and south lines of the Tybout survey, and that the hemlock northeast corner, the sugar southeast corner, and the hemlock sapling southwest corner, called for in the return, were marked respectively as corners in 1794. The hemlock sapling had disappeared, but the defendant's surveyor determined the age of the corner by a witness found there, and by other signs.
Defendant also introduced evidence of certain surveyors, tending to show that no marks upon the ground had ever been found for the Moore survey on the line north from the hemlock sapling corner, or on the line west from the hemlock northeast corner thereof, which bore the date of such survey. In this connection, it put in evidence certain official maps from the land office of Pennsylvania, showing the location of what is known as the General Brodhead lands, lying west of the west line of the Moore survey extended southerly; and also produced evidence tending to show that a line bearing marks dating 1792 was found from the sugar tree, the southeast corner of the Tybout tract, to the hemlock sapling corner mentioned, and that the sugar tree was marked as a corner of 1792, and that a corner of 1792 was found at the hemlock sapling
corner. Other evidence was introduced by the defendant designed to show the non-existence of an actual survey of the Moore warrant according to the official return thereof, the details of which need not be stated here.
In connection with this contention the defendant offered to give further evidence, founded upon examinations made upon the ground by surveyors, to show that the Moore warrant was not actually surveyed on the ground according to its return of survey, but was surveyed, together with the Cooley and other warrants to the south of it, in one block, of which the Moore was the northern member; that the north line of that block, if actually surveyed upon the ground in 1792, was run between the hemlock sapling and sugar corners, corresponding to what was claimed by the defendant to be the south line of the Andrew Tybout tract; that no line of 1792 was surveyed on the ground for the Moore warrant north from the hemlock sapling corner, nor west from the hemlock northeast corner of the Tybout tract; and that the line south from the hemlock northeast corner aforesaid was run for warrants to the east of said line, and was merely adopted by the return of the Moore survey. To this evidence the plaintiff objected on the ground that twenty-one years and upwards having elapsed from the date ...