
    [Sunbury,
    July 3, 1829.]
    ROBESON and others against GIBBONS.
    IN JSRKOR.
    A subsequent survey cannot affect a prior one, regularly made and returned; and if the court be requested by counsel to charge the jury to this effect, and refuse to do so, it is error.
    The omission to charge the jury that a delay in bringing suit for any time short of that prescribed by the statute of limitations, is not a bar to the suit, when requested by counsel to do so, is error.
    A connected draught from the surveyor general’s office is. evidence, not to make title, but to show whether there are any, and what interferences.
    Error to the Court of Common Pleas of Union county.
    Ejectment for three hundred acres of land or thereabouts, bounded by lands late of Charles Hall, and others.
    Tbe plaintiffs in error who were also plaintiffs below, were the heirs of William Bonham, deceased, and on the trial, after having given in evidence a warrant dated September 28th, 1773, in favour of David Emerick, for one hundred acres, and another, dated May 4th, 1774, in favour of David Emmarts, for one hundred and fifty acres, they offered a certified paper dated May 13th, 1828, purporting to be a connected draught of two surveys in the names of David Emerick, and David Emmarts-, and also a return of survey certified in tbe same-manner, being an extract from the surveyor general’s book of March 8th, 1774, to which the defendant’s counsel objected. The evidence was overruled, and the plaintiffs took a bill of exceptions.
    
      The title under Emerick’s warrant was conveyed to Bonham, who, on the 4th of February, 1824,' obtained a patent.
    The defendant’s title was founded upon an application of William Gibbons, dated 31st oí .March, 1809, referring to an improvement of March, 1802; a warrant dated May 27th, 1809, but which .was not produced, and a return of survey oí-August 2d, 1809.
    The plaintiffs’ counsel submitted to the court certain propositions on which they requested the jury might be instructed.
    These propositions, and the answers given, to them by the court, were as follows:— .
    1st. That the official draft of survey and return, and the patent to William Bonham, on the warrant in the name of Dccvid Emerick, are strong evidence in the plaintiffs’ favour, that their survey 'was actually made upon the ground as .represented by that .draught; and unless the jury find strong evidence that the survey was made differently, they are conclusive proofs that it was made as that draft shows it.
    
      Jins. To this the court assent, but those .are facts for the -jury.
    .2nd.' That if the jury believe the testimony of John Lloyd and Joseph Stillwell, • respecting the lines of Emerick, they were made according to his official draft,’ and they include the buildings and improvements, of which Gibbons is in possession, and the plaintiffs’ official title is the best, if the survey was so made.
    
      Jins. The plaintiffs’ title is the best, if his survey includes any of the defendant’s land. As to the testimony of John .Lloyd and Joseph Stillwell, it is for the jury to determine. Whether their •testimony proves that Emmerich’s survey does include the buildings and improvements which Gibbons is in possession of, is for •the jury to determine from all the evidence.
    3rd. • Whether the official survey of the defendant, ’ the lines dotted upon it for Emerick, or any thing else upon it is evidence, or strong evidence, that the plaintiffs’ survey was not made as represented by their official draught, in the name of Emerick, as sworn to by Stillwell and Lloyd? And whether there is. any evidence whatever, against -the existence of the plaintiff’s’ survey as returned? ' ■
    
      Jins. The defendant’s survey returnéd, is prima facie evidence, that the survey was made agreeably to the return. The plaintiffs’ survey and return are also jorima facie evidence, that their survey was-made agreeably to the return of survey, and if the jury find there is any interference,- the plaintiffs would be entitled to the land within their own lines, unless the defendant can hold by the statute of limitations: and whether the surveys were agreeáble to the official draft is a fact for the jury.
    4th. That unless the defendant has had.an exclusive adversé possession for twenty-one years before this ejectment was instituted, the limitation act does, not protect him. That the possession must also have been enclosed during that time, and without interference, and that if both Bonham and Gibbons were in possession - of the interfering parts of the survey, the elder and superior title of plaintiff is to hold all the lands, excepting what Gibbons had so actually enclosed for twenty-one years, if any there is.
    
      Jins. To this the court assent: an actual occupancy with .definable boundary, without fencing, would be sufficient to hold by the statute of limitations so far as he had actually occupied for twenty-one years, before the commencement of the plaintiffs’ action; but constructive possession will not do where there are two adjoining tracts, as in this ease, each holding a legal estate under the commonwealth, and there is an interference of lines; the land belongs to him who has the oldest and best title. In-this case if the jury believe that there is an interference, the land belongs to the plaintiffs who have the best title, so far as the defendant has not been in the actual occupancy with definite boundaries for twenty-one years before the commencement of this action. It is immaterial whether these boundaries are a fence,'or a ditch, or a hedge, pr the land is surrounded with brush, so that there are actual definite boundaries. ?•
    5th. Whether the plaintiffs are barred in equity, from recovering, by any improvements of the defendants’ and Bonham’s delay to bring his ejectment?
    
      Jins. He is not — But Bonham suffering Gibbons to patent and pay for his land, and make valuable improvements, without entering his caveat, or claiming the land, is strong evidence that William Bonham in.his life time did not claim the land in possession of Gibbons.
    
    The errors specially assigned in this court were:—
    1st. The rejection of the evidence stated in the first bill of exceptions. ' -
    2nd.- In the answers given by the Court to the points made by the plaintiffs’ counsel on the trial.
    The cause was argued in this court by Bellas for the plaintiffs in error, and Greenough for the defendants in error.
   The opinion of the court was delivered by

Huston, J.

— The plaintiffs here were plaintiffs below, and showed a warrant in 1773, and another in 1774; also a survey on Mmerick’s warrant, (the one in question,) returned into the surveyor general’s office in 1774, and a patent. ' They also proved that the lines of the survey in question were oh the ground, agreeably to the return of survey, or at least three of them, and that the defendant was residing within those.lines. The defendant showed a warrant in 1809, founded on an improvement in 1802, a survey in 1809, and a patent in 1812. Much testimony was given as to the defendant’s improvement: whether his original improvement was within the plaintiffs’ survey; whether it had been duly followed up; when and how he got into possession where his present’ house iá. All this was matter to be decided by the jury. Several points of law were proposed by the counsel, on which the court were requested to give opinions, and opinions were given.. We do not see any error in these, on giving the opinions-a fair construction, except the third.- It has happened in this case, as in,many others, that the propositions.submitted to the court are not expressed in the most definite manner, and it is not certain that the court- understood some, of them in exactly the same manner that he- who wrote them,did. ' . . - .

It is usual and .proper fór a deputy surveyor to note on, his draft of return of survey the names of the older-surveys which the one- then returned adjoins. The deputy in this case was an excellent and accurate officer. In the draft of the defendant’s survey, he notes on the outside of- on'e line, that it adjoins D. Emerick,. (the plaintiffs* warrant,) and' by dotted -lines shows what he supposed to be the length of Emerick’s line, which the defendant adjoined, an.d the course of the other lines of Emerick, running off 'from that -line. The- defendant having- insisted on these marks on his own survey,- designating, as he supposed, .the plaintiffs* claim, the court were asked- to charge the jury, as to-whether this draft of the defendant’s, and what was written on it, were evidence,'or, strong evidence, that the plaintiffs’ survey-was not made as represented by the return, under seal, and as the lines are proved to be on the ground. The answer does not meet the point; in fact, there is no answer.

It is not supposed that a deputy surveyor, in executing a survey, runs all 'the lines of former surveys which it adjoins: he ought to have all the drafts of former surveys in hi's hands, but this is not always the case; he knows those lines which he adjoins in the survey he is 'making, or somebody shows them to him, a'nd be generally takes care not to interfere with prior surveys. The names and- notes on the draft he returns are evidence .of how he understood the matter at the time; but, a little reflection will satisfy any person that these are only of use to show the relative situation of the survey then making. In this case, the plaintiffs’ survey was made and returned in 1774; their title depended then, and depends now, on what was done at that time; their right, and the extent of that right, were then established; and no act of any individual or officer in 1809, can in the slightest degree affect it.

Whether Mr. Eomul ran, or did not run the lines of Emerick,' in 1809; whether he had a correct or incorrect draft of Emerick’s survey; or whether the lines of .that,survey were shown him erroneously by the defendant, or by some other person; nay, whether he executed the defendant’s survey in part on ground within Emerick’s by mistake,-or by design, is. wholly immaterial. No act of the defendant’s, or of a deputy surveyor,- can divest the .right as before established; it cannot be taken away from the owner except by the operation of the statute of limitations, or by the owner’s sale of it.

■ These notes hr memorandums on a draft-are often used as illustration, as proof of location; or where a draft is lost, as secondary evidence; and, where two surveys are made,, at the same time, by the same surveyor, and some mistake in the drafts as returned, may avail, as to title; but, that the memorandums on a. survey made in 1S09, should control, or in any way affect a survey in 1774, returned and patented, and the lines of which are still found on the ground, is out of the question. They did not weigh a feather — they ought not to have been regarded by the jury, and so the court should have told them.

The answer to the last point is rather loose.' The true answer was, that William Bonham, not bringing suit sooner, was no bar to the plaintiffs’ recovery. The time prescribed by the statute of limitations is a bar. I would adhere to that strictly! and neither relax nor enlarge for favourable or hard cases; it is a matter of positive enactment, and neither ■ courts nor -juries' can disregard it, without forgetting or disregarding their duty.

There was another point made in this cause, as to the nature and effect of a connected draft from the surveyor general’s office under the seal of that offibe. -The case, Vickroy v. Shelley, 14 Serg. & Rawle, 372, settles this point, and to that I refer.

Judgment reversed, and a venire facias de novo awarded.  