
    Morris against Travis. Morris against Wilkins.
    Tuesday, September 11.
    In- ERROR.
    A survey, of which only one line has been run and marked on the ground, is not good to shew, that the defendant had intruded within the lines of the plaintiff’s land.
    It seems, a survey of which only one line is run and marked on the ground, is void,5 but though only one line is found, it may go to the jury as evidence to presume others marked, and if accompanied with possession and acts of ownership for twenty-one years, may form a title.
    • So, if a general marked outline enclose several tracts, it is a good survey of the whole; and the intermediate lines established for division or sale, may be good,though not marked on the ground.
    The silence of the Court concerning the testimony of a witness, is not a withdrawal of it from the jury.
    Evidence of the improvements made by the defendants is admissible in ejectment, to rebut the evidence of the same kind given by the plaintiff, though otherwise not correct.
    ERROR to the Court of Common Pleas of Armstrong county, and bills of exceptions to the charge of the Court.
    Ejectments brought by Casper W. Morris, against Robert Travis and John Wilkins.
    The plaintiff on the trial in the Court below, produced warrants and surveys and patents thereon, and the question was, whether they embraced the lands on which the defendants resided.
    In the suit against Wilkins, the Court charged the jury among other things, that, the plaintiff had shewn a legal title to seven-twentieths of a tract of land containing one thousand acres, • and witnesses had been examined to shew that the defendant was in possession. The only corner found on the ground, applicable to the survey, was a white oak. On measuring the distance from that corner to the next, which, on the draft, was an asp, some marks were found along the line. No asp was found at the end of it, but some aspen grubs, as well as some of hickory and sassafras. In answer to a question put by the plaintiff’s counsel, the Court further charged, that if but one line was measured by the deputy surveyor from one corner to another, although it was, marked from corner to corner, and no other line was either run or marked, this would not, although extended, be an execution of the warrant under which the plaintiff claimed. If the other lines had been run, this ought to appear by probable testimony, as by connecting it with other lands, which either then or afterwards were surveyed.
    In the suit against Travis, the charge of the Court was, in substance, the same in this respect. In summing up in this latter suit, the Court omitted to notice the testimony of Alexander Craig, given on behalf of the plaintiff. The verdicts in both suits were in favour of the defendants, and the plaintiff excepted to the charges of the Court respeclively.
    In the ejectment against Travis, the'plaintiff gave evidence respecting the improvements made by the defendant: the defendant afterwards offered evidence of the extent of these improvements : which was objected to by the plaintiff, and admitted by the Court. The plaintiff excepted.
    Foster, for the plaintiff in error.
    
      Kelly, contra.
   One opinion was delivered in both these cases, as the opinion of the Court, by

Gibson J.

The question before the jury, was not whether the plaintiff’s title to the landjincluded by the diagram of the survey returned, should be affected by reason of the lines of the survey not having all been run out and marked, for the Court declared at the outset that the title was good; but whether the defendant had intruded within the plaintiff’s lines. It is true that near the conclusion of the charge, the Court did, in effect, say that a survey, of which only one line has been run and marked, is void; but even if the case had been left on that ground, there would have been no error, for the very point was resolved in Fugate v. Cox; and I think there are arguments in favour of the doctrine that can never be successfully encountered. By this, I do not mean to say, that a survey will be void wherever no more than, one line can be found. That one line is found marked on the ground, may be a circumstance of more or less weight, to go to the jury as evidence that the other lines were marked and run also: and such evidence being accompanied with possession and acts of ownership during the requisite period, (which, in analogy to our Statute of Limitations, I take to be twenty-one years,) will raise a legal presumption in favour of the regularity of the survey. But although the survey of an insulated tract, of which only one line was in fact run, would unquestionably be void against a person subsequently appropriating the same land undera purchase from the State ; yet where a general marked outline encloses several tracts owned by the same person or by a number of persons, (which would undoubtedly be a good survey of the whole,) I can see no reason why the intermediate lines as plotted on the diagram, should not be valid for all purposes of division between the original owners, or purchasers from them when the lands thus surveyed have been retailed. If then the plaintiff had shewn, by producing the warrants and the diagram of the general survey, that this was one of a number of tracts laid together by a common boundary, and that by a survey of the intermediate lines according to their courses and distances, the defendant was found to be within the lines of the draught of this particular tract, the case would have been clear of all difficulty. But this was not done, and in the case as disclosed, I cannot see how the survey, which appears to have been void from the beginning, could, even admitting the plaintiff had title, have any operation for the purpose of defining boundary; because if it could in any aspect, it must necessarily have been sufficient to guard subsequent appropriators from surprise, and have been a valid appropriation of the land in the first instance.

But it is objected, the Court withdrew the evidence of one Craig from the attention of the jury. But this no further appears, than that in summing up on the question of fact, the Court was entirely silent as to the operation of his testimony; which was by no means a withdrawal of it. Again it is objected, that the defendant was permitted to shew the extent of his improvements on the land he had in possession; but this it was competent for him to do, if for no other reason, to rebut the evidence the plaintiff had given on the same subject. The judgment is therefore affirmed.

Judgment affirmed.  