
    [Chambersburg,
    Oct. 21, 1822.]
    WILSON against STONER.
    IN ERROR.
    A survey is not evidence without showing an authority to make it, or proving that such authority existed and was afterwards lost..
    Possession upwards of 30 years, under a survey found in the hand writing of an assistant deputy survey or, indorsed “copied for return,” with a memorandum by him, that there was an authority to make it, the lines of. which survey are marked on the ground, is not a sufficient foundation to presume a warrant or authority.
    Error to the Court of Common Pleas of Franklin county, in an ejectment brought by William Wilson .against Isaac Stoner, in which a verdict and judgment were rendered in favour of the defendant.
    The plaintiff claimed under a warrant in his own name, dated the 22d July, 1817, and survey thereon on the 4th September, 1817, for 58 acres and 64 perches of land in Franklin county, returned and accepted on the 1st December, 1817.
    The defendant claimed under a survey of 55 acres in the name of Isaac Baird, made by Samuel Lyon, formerly assistant deputy surveyorfor the district, and dated the 5th January, 1770. It was in the hand writing of Mr. Lyon, and was found in the deputy surveyor’s office. It was indorsed in Mr. Lyon’s hand writing, “ copied for return;” and by a memorandum subjoined to it, also in Mr. Lyon’s hand writing, it purported.to have been made under an order.for 300 acres; but in what name, or at what time, did not appear. No location or order was produced. It was admitted, that due search had. been made for the order mentioned in this memorandum; but it could not be found. The survey was proved'to have been made on the- ground, and distinctly marked. Isaac Baird conveyed on the 3d November,. 1773, to Gabriel Carpenter, by a deed, which recited the survey in favour of Baird; and on the 23d May, 1807, Carpenter conveyed to the defendant, Stoner. The defendant proved, that upwards of 30 years before the trial, and since,  (though the time ofithe first act was not distinctly stated,) Carpenter, who.lived on an adjoining tract, and after him the defendant, had cut timber on the premises, for building, and for rails. A building was erected in the year 1790, after which the land was in the possession of Carpenter, and subsequently of the defendant. The defendant relied on the above facts, and the alleged possession of upwards of 30 years, to support the presumption of the existence of an order or location, on which Isaac Baird’s survey was made.
    The plaintiff objected to the reading of the survey and deeds in evidence; but the court admitted them, and sealed a bill of exceptions.
    
      The plaintiff requested the court to charge the jur-y, that there being no evidence of any warrant, location, order of survey, or office right, the survey was entitled to no weight with the jury.
    . But the court charged, that there was nothing in the law to prevent the jury from presuming the existence of an authority to make the .survey, though it could not be produced. To support an ancient possession of long standing, a patent, a deed, and even an act of parliament, have been presumed. They further charged the jury, that if they were satisfied, that a regular authority existed under which Baird’s survey was made, that such survey was regularly; made upon the ground, and that the surveying fees were paid, which fact, from circumstances, backed by a long possession under .the survey, might also be presumed, then the plaintiff ought not to recover.
    
      Crawford, for the plaintiff in error.
    The court below were wrong in allowing the survey to be read in evidence, without any order or authority being first produced, to justify its being made. No case is to be found in which the courts have gone so far as this; in all of them there has been some evidence of an authority. In Sproul v. Plumsted’s lessee. 4 Binn. 189, sundry warrants having been given in evidence, a survey was admitted, though it did not express by virtue of what warrant it was made: it was left to the jury to judge, whether it was made by virtue of any warrant. It is, in'that case, distinctly admitted by the court, that if no sort of warrant had been shown, the survey ought to have been rejected. Lessee of Brown v.. Long, 1 Yeates, 162, is an authority to the same effect. So a survey adopted by the land office is evidence, though not made by the regular officer. Shields’s lessee v. Buchanan, 2 Yeates, 21,9. But, till some foundation for the act is shown, it is like a deed made by a person who has no title, which is- not evidence. Shields’s lessee v. Buchanan, 1 Binn. 188. Peters’s lessee v. Condron, 2 Serg. & Rawle, 80. The memorandum of Samuel Lyon, that there existed an authority of some kind, had it-been ever so precise and definite, was no evidence of its existence. In Bonnet’s lessee v. Devebaugh, 3 Binn. 175, the declarations of Gen.-Armstrong, thathé had made a survey in 1755, under an order from the proprietaries, were injected, though he was dead, and all his official papers had been accidentally burnt, and the warrant of acceptance recited, that the survey had been made under such an order. Yeates, J. sáys, a warrant or order of survey, some written direction, or instructions, from the commissioners of property, or some one of them, became necessary to justify the surveyor general, or his deputies, in locating land applied for. If the original, or a copy, cannot be produced, parol testimony of its loss, and contents, is admissible. The opinion of Bkackenkidge, J. is to the same effect. Ib. 190. The only ground, on which such surveys could have been maintained, is, that Of a custom or. usage, which existed in early times, on payment of £ 5, and surveying fees: a custom which tvas recognized as valid in Woods’s lessee v. Galbraith, 2 Yeates, 306, in the case of a survey made in the year 1745; but does not apply toa survey made as lateas 1770. - The exception, however, proves the general rule, which is, that the act of an unauthorised deputy surveyor is altogether void. Healy v. Moul, 5 Serg. & Raiole, 181.
    
    The survey, therefore, being void, for want of an authority, there was no ground from which an authority could be legally presumed. The possession was not ancient, it was but thirty years; which is not long enough to presume a matter of record. In the Mayor of Kingston v. Horner, which is the leading authority on the subject of presuming a charter or patent, the possession was 350 years, and there were other circumstances, Cowp. 102. • The time required to presume a patent, or grant of land from the state, is a great length of time. 1 Phill. Ev. 119. 2 Hen. & Munf. 370.
    
      Chambers, contra.
    All the exceptions taken by the plaintiff, may be reduced to one point, namely, whether the length of time, and other circumstance were not sufficient to justify the court in admitting the survey, and leaving it to the jury to presume an authority in the assistant deputy surveyor to make it. The length of time within which a charter of official authority may be presumed, must depend upon the particular circumstances of each case. In questions of this kind, possession goes a great way, and there is no particular time within which a charter may be presumed. Mayor of Kingston v. Horner, Cowp. 110. ' '
    The law greatly regards fire public safety and repose, ánd almost any thing will .be presumed in favour of ancient possession. Patents and grants are presumed after'30 years, 3 Johns. Cas. 117. Garwood v. Dennis, 4 Binn. 337. Lowrey v. Gibson, 2 Yeates, 84. Slight circumstances will be taken hold of. In Garwood v. Dennis, recitals in deeds were held evidence after long possession. In Evans v. Nargong, 2 Binn. 55, a presumption was raised, that one person was the owner of a warrant issued in favour of another, from attending and directing the survey, and from other circumstances. In Galloway v. Ogle, 2 Binn. 468,40'years were held sufficient to create a presumption of a conveyance of unpatented land. In relation to land titles in Pennsylvania, there has been much latitude allowed. In Bell’s lessee v. Levers, 3 Yeates, 25, the Chief Justice says, in charging the jury, that the authority of a deputy to make surveys, should not be too elosely scrutinized, after so great a lapse of time as 27 years. At so early a date as 1763, it was decided by the Supreme Court, that a letter of James Steel, receiver general, and secretary of the land office, was a sufficient authority, Father gill’s lessee v. Hoover, 1 Dali. 6, and in 1774, the list of first purchasers was held evidence of the former existence of a lost deed, Hurst v. Deppo, 1 Dali. 20. The general doctrine as to presumption is. stated by the Chief Justice in Mather v. 
      The Ministers of Trinity Church, 3 Serg. & Eawle, 510. “There is no absolute time required by law, on which to found this kind of presumption. Circumstances may require, in different cases, a different length of time,” and in that case, a grant, or pre-emption right from the commonwealth, was presumed after 90 years possession, though no trace of such right was shown by any writing or other evidence. The doctrine of presuming a grant or right after a lapse of time is, by modern decisions, extended to every subject: to the case of an easement after 20 years possession, 2 Saund. 175, A. note; to a rent, 1 Madd. Ch. 25, and payment of rent is presumed after that period, 16 Johns. 210; after 14years possession regular re-entry by thelandlordis presumed, 2 Caines, 382. In the present case, the survey was made in the year 1770, upwards of 50 years before the trial: and in a deed dated the 3d November, 1773, the survey by Lyon is recited. The survey itself was preserved for 30 years in the office of the deputy surveyor. There were buildings on the land 30 years ago; and it was occupied before that period by Carpenter as woodland, and as appurtenant to his farm: showing a possession by him for 39 years.
    
      Crawford, in reply.
    The occupation in the present case was equivocal: it consisted in cutting wood. The deed by Isaac Baird in 1773, recites Lyon’s survey, but not any warrant or location, and it is for this purpose that some evidence is sought, and not as to the survey, which is sufficiently proved.
   The opinion of the court was delivered by

Duncan, J.

Both of the exceptions relied on contain exactly the sam,e point — the effect of length of time in presuming the existence of a location on which the survey for' Isaac Baird, under which the defendant claims, might have been made. The facts from which the presumption is said to arise, are: There has been possession for more than 30 years, according to the survey; the memorandum at the foot of which recites, that it was made on an order for 300 acres, but without mentioning the date of the order, or the name of the owner. The survey is in the hand writing of Samuel Lyon, at that time an assistant of the deputy surveyor of the district; and has indorsed on it, (also in the hand writing of Mr. Lyon,) “ copied for returnand added to this the paper is found in-the office of the deputy surveyor of the district. These circumstances could not be received as presumptive evidence for the jury to draw the conclusion as matter of fact; for if the existence of the location be admitted, some account of its loss would have to be given before secondary evidence of its contents could be received; without which the survey would be inadmissible for want of a previous authority. Besides, there is nothing but the assertion of the assistant deputy, to show that the making of the survey was any thing else than an extra-official act; and the assertion or declaration of a deputy, except where it is made in the discharge of an official duty, and is párt of the res gesta, as in the case of a receipt for fees given when the fees are paid, is not competent evidence. But before the declaration can be received as part of an official act, the act itself must appear by evidence aliunde to have-been official; for it would be arguing in a circle to say, that Mr. Lyon’s assertions are evidence, because he acted by authority, and that he did act by authority is proved by those assertions. Nor is the case strenghtened by the circumstance of Mr. Lyon having been in the employment of the deputy, and the paper being found in the deputy’s office: I would consider it to be the same if the survey were in the hand writing of the deputy himself. His having seen and recognized the survey could give it no additional force: it might be otherwise if it were received .in the land office. It would be dangerous to consider every paper found in a deputy’s office as official of course; whether it had relating to the execution of his office or not. His power is derivative, and unless something appear to raise a presumption that he acted by authority, his act will not bear an Official stamp merely because he filed the evidence of it with his official papers. As presumptive evidence to satisfy the jury of .the truth of the facts, therefore, the paper was in every view inadmissible.

But it is contended, that be this as it may, possession having accompanied the survey for something more than 30 years, is sufficient to raise a legal presumption of an authority on which it may rightfully have been made. Presumptions from length of time are those which the law makes without regard to what may have been the actual state of the fact., They are conclusions of law, not of fact; and neither the court nor the jury is, supposed to believe what they take to be conclusively established as true. The particular circumstances of possession and length of time are to be determined by the jury; but the inference from-them is for the court. This principle of decision is had recourse to from necessity, because, from the remoteness of the period of the supposed transaction there is no means of ascertaining the actual state of the fact; and . it therefore holds in judging only of things which belong to antiquity. In England a grant may be presumed against the Crown; but less readily than against an individual. In this state, from the very'nature vof our land titles, the reason of this difference holds with additional force. In other countries, holding by permission of .the state is a rare circumstance: with us holding by permission under an implied contract for a conveyance to be executed at an indefinite period subsequently, is a common origin of title. This remark is applicable in a greater or less degree to every part of the state: but it is obvious that to raise this kind of presumption a greater length of time will be required, where' the population is sparse, and the possession a matter of little notoriety, than where the population is dense, and possession of a nature to arrest the general attention. In Mather v. The Mini sters of Trinity Church, the land which was the subject of the presumed grant, lay in the neighbourhood of Philadelphia, the oldest and most thickly inhabited part of the state; and the occupancy of it by the erection of a church on it, in which divine service was regularly celebrated, and by using a part of it as a ceme-try, was of a nature so notorious as to preclude all possibility of its having been unknown to the proprietary officers, or to the government, after the proprietary estates were assumed by the common wealth.' Under these circumstances it was held that a grant ought to be presumed after 90 years. At the time, too, when this possession commenced, there was scarcely any thing like method in the issuing of rights to land: after the application system was introduced, the business of the land office was conducted with regularity, and the locations were duly registered in the proper office. To this may bcadded that the locationin question, ifinfactone ever existed, wasfor land in a part of the state comparatively new and thinly inhabited, where taking possession without a grant, was a common mode of 3"eying a foundation for a title; and that the occupancy in this particular instance was attended with no peculiar circumstances of notoriety. It is impossible to lay down any rule on the subject of presumptions, which could be safely applied to any thing like a majority of the cases that may arise, these must be judged of from their particular circumstances. As a standard for general reference, the ordinary period of human existence, might perhaps be found more convenient in practice, and thought more consistent with the reason of the thing than any other that could be proposed; for while a matter maybe susceptible of proof by living witnesses, itcannotbe classed with the things of antiquity. But this is thrown out merely byway of suggestion. We establish no general rule as to presumptions against the commonwealth: much less do we pretend to determine what «would be a reasonable period as against an individual. Wc are of opinion the period of 30 years was insufficient to raise a presumption of the existence of a location, or any other authority, on which Baird’s survey might have been made; and consequently that the survey ought not to have gone to the jury:, and that even if it might rightly have been admitted, instructing the jury that there was nothing in the way of a presumption in favour of the existence of a location, was error.

- Judgment reversed and a venire de novo awarded  