
    Parks et al. versus Boynton.
    1. Where, in an action .of ejectment, there can be no room for doubt as to what has been actually tried and found by the jury, the court may, by virtue of the provisions of the Act of March 14th 1872, § 1, Pampli. L. 25, permit the description of the tract in question filed by the plaintiff to be so amended as to conform to the verdict.
    2. The said section of the above Act, as thus applied, does not infringe *the -right of trial by jury, and is not, therefore, unconstitutional.
    3. Where, in endeavoring to fix the location of a tract of land, marks are actually found upon the ground indicating .the corners of an adjacent and earlier survey, which corners are called for in the survey of the tract iu question, such marks will be held of equal importance in determining the true location of the tract with other marks found upon the ground which were made on the survey of the tract itself.
    4. Where several tracts of land are surveyed together in one block, but the interior lines of division are not run, the presumption is only prima facie that such interior lines were intended to be parallel to tbe lines bounding the entire block. Such presumption may be overcome by the existence of landmarks indicating that the contrary is the case.
    5. In ascertaining the location of a tract of land, actual marks on the ground will control courses, calls and distances called for by the survey.
    6. Where several tracts are surveyed in one block, but the lines of division are not run between them, and subsequently the block is found to contain more land than the aggregate amount called for by the surveys of the tracts within it, the proper course is to divide the surplus proportionably among the several-tracts,
    
      7. Three tracts of land, A, B and 0, were laid out in a block, but the lines of division were not run between them. All three tracts Imd a common western boundary, the northern and southern ends of which were' clearly marked on the ground. The total length of the common western boundary exceeded the aggregate length of the western lines of the tracts as called for in the survey. Tracts A and B had also a common eastern boundary, the northern and southern ends of which called for corners on an adjacent tract, which corners were also found marked on the ground. The common eastern boundary line of tracts A and B was greater than the aggregate length of the western lines of those tracts as called for in the survey. Held, that in order to fix the division line between tracts A and B, the proper course was to divide proportionably between all three tracts the surplus on the western line, and to do the same on the eastern line as between tracts A and B, and then to run a line from west to east between the points thus ascertained on the east and west respectively, to be the points of division between the tracts.
    June 15th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trünkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Olearfield county : Of May Term 1881, No. 78.
    This was an action of ejectment brought July 24th 1877, by Jonathan Boynton against Thomas Parks and the Olearfield Fire Brick Company for a tract of land containing about ten acres, represented by the shaded strip on the plan on next page.
    On the trial before Mayer, P. J., the following facts appeared : The Charles Stewart, John Vaughn and’William Lewis tracts were surveyed as one block on June 17th 1793. Its northern, southern and western boundaries were established by the corners and lines ofjtóder surveys of 1792, tlie location of which is undisputed. TTie Stewart, Vaughn and Lewis tracts* called for each other, but their interior division lines were not • run or marked on the ground. The total official distance of the three surveys along the western line is 625 perches. The distance by actual measurement is 637-|~ perches, thus leaving a surplus of 12£ perches. The eastern boundary of the John Vaughn and William Lewis was, in part, the Jane Campbell, surveyed in 1785, as shown in the plan, the location of which is not disputed. The Vaughn called for the northwest corner of the Campbell, and the Lewis called for its southwest corner, and both called for a portion of its west line. The official distance of the west line of the Campbell is 222 perches; the distance by actual measurement is 233.7 perches.
    The plaintiff showed title to a tract of land, being the southwestern part of the John Vaughn tract, “ Beginning at a post on the southwest corner of the [John Vauglm] tract and the northwest corner of survey in the name of William "Lewis, thence along the dividing line of the William Lewis and John Vaughn surveys 195 perches to a post, thence along and by Jane Campbell survey north,” &c.
    
      
      
    
    
      The defendants showed title to a tract, being the northwestern part of the William Lewis tract, adjoining the John Vaughn survey on the north. The defendants and their predecessors in title, had occupied, cut timber, and removed fire clay from the strip in question for a long time prior to the bringing of this action.
    The plaintiff claimed, that in the absence of any marks on the ground showing that the interior division line had been run between the John Vaughn and the William Lewis at the time of the survey, and in the absence of evidence of an agreement between the owners of said two adjoining tracts fixing the division line, the surplus of 12-J perches, in excess of the official call for the western line of the Stewart, Vaughn and Lewis block, should be apportioned equally between the three tracts; whereby •the division line between the Vaughn and Lewis tracts would be the southern line of the tract in dispute (marked in plan b b). The plaintiff further claimed that it was within the province of the court to determine the location of the said division line, by apportioning the said surplus equally between the said tracts.
    The defendant Parks showed that he entered into possession of his tract in 184.-6; that in 1849, he caused a survey to be made by one Cuttle, who ran the division line between the Vaughn and Lewis tracts along the northern line of the tract now in dispute (being the line marked on the plan a a). This line was marked on the grpund, and its location is undisputed. While there was no evidence to show that the then owners of the Vaughn tract knew of the running of this line in 1849, yet the defendant proved that he and his assignees of timber rights thereafter cut timber up to that line and used the land as farmer’s usually use their woodland, for fire-wood and fencing, without molestation or complaint from the then owners of the adjoining part of the Vaughn survey, nor until the plaintiff derived title by a sheriff’s sale in 1876. The defendants contended that by such acquiescence, the line of 1849 became established as a “ consentable line,” although the predecessors in title of the plaintiff did not directly join in making it.
    It further appeared in evidence, that if the southwestern corner of the Jaue Campbell tract were adopted as the starting point, from which to locate a division line between the Vaughn and Lewis, that line would be where the plaintiff claimed, viz., the southern line of the tract in dispute; but that if the northwestern corner of the Jane Campbell tract be taken as the starting point, the division line between the Vaughn and Lpwis would be located north of the.liue of 1849, which the defendants claimed.
    The court, at the request of plaintiff’s counsel, instructed the jury that there was no sufficient evidence to establish a consentable division line, and that the verdict must be for the planitiif. Yerdict accordingly for the plaintiff.
    The plaintiff subsequently took a rule to show cause why an amended description of the tract in controversy should not be filed, which rule the court, after argument, made absolute, saying, in an order filed: “It appearing to the court that this
    amended description conforms to what was tried by the jury and found by the verdict, this amendment is, therefore, allowed and ordered to be filed.”
    Judgment having been entered on the verdict the defendants took this writ of error, assigning for error, inter alia, the action of the court in directing a verdict for the plaintiff and in allowing the amendment of the description after verdict.
    
      Krébs (with whom was Wallace), for the plaintiffs in error.
    —There was ample evidence of the disputed question of fact as to the location of the division line ; but instead of submitting it to the jury, the court directed a verdict for the plaintiff, on the theory that it was within-the province of the court to apportion the surplus arising from the discrepancy between the official distance and the actual distance, equally between the throe tracts of the block. This was manifest error. The line of 1849 was openly made and visibly marked and recognized as the division line by the owners of both tracts. Whether the acts of the parties were such as to constitute it a consentable line was a question for the jury. The court, however, not only assumed to decide this question of fact, but disregarged all the evidence of location furnished by the established corners of the Jane Campbell survey on the east.
    The court also erred in permitting the amended description to be filed, five months after the verdict. The case was tried on a descriptive claim which was so vague that the sheriff could not have enforced a writ of habere facias possessionem. The amendment was allowed by virtue of the Act of March 14th 1872, Pamph. L. 25; but we contend that this act does not apply where the court direct a verdicc and no issue of fact was settled by the jury. If it does apply to such a case, the act is unconstitutional. Otherwise, where the disputed fact is the true location of a boundary line, the court may assume a particular location and instruct a verdict establishing it, then permit an amendment, changing the description to conform to the assumed location, and enter judgment on the verdict; whereby the defendant would be choused out of his land without a trial by-jury of his title to the land as covered by the amended description.
    
      McEnally (.McCurdy with him), for the defendant in error.
    —The mere fact that one party causes an alleged division line to be run by a surveyor without the knowledge of the owner of the adjoining tract, and afterwards commits trespasses up to that line, is not sufficient to take a case to a jury on the question of a consentable line: Adamson v. Potts, 4 Barr 234. To establish a consentable line, it is essential to show that both parties, knowing their respective rights or claims, by acts in relation thereto, show that they mutually adopt a line as a division.
    As to the question of location. — The exterior lines of the block are fixed. The interior lines were described but not marked on the original survey. In such case, in the absence of evidence of a consentable line sufficient to sustain a verdict, the interior lines are to be fixed by legal principles, and judgment will not be reversed, because the judge declared the true eifeet of the evidence, instead of submitting it to the jury : Eister v. Paul, 4 P. F. S. 196 ; McCracken v. Roberts, 7 Harris 390; Mathews v. Hegarty, Wr. 64; Hagerty v. Mathers, 7 Casey 348. The amendment of the description after verdict came within the purview of the Act of 1872, the object of which was to prevent the failure of justice through, technical defects after 'a fair trial on the merits.
    June 22d 1881.
   Mr. Justice Trunkey

delivered the opinion of the court

It would be scarcely possible that evidence could more clearly show the location of the land which the plaintiff claimed to recover. The line of 1849 is marked on the ground, both parlies proved it and concede that it is the north boundary of the land in controversy, which is a strip about eight perches wide and.one hundred perches long, bounded on the south by the original line of the John Vaughn survey, as described in the praecipe. In the amended description said line of 1849 is the north boundary, the south is called the original line of the Vaughn survey, and the strip is seven and three-tenths perches wide and ninety-four and four-tenths perches long. This amendment was directed under the Act of March 14th 1872, a salutary law that enables the court to make the record conform to what was tried before the jury and found by the verdict. Where, as in this case, there is no room for doubt as to what was tried and found, it is the duty of the court to.allow the filing of an amended description if one be needed. The ingenious argument of the plaintiffs in error failed to convince us that such amendment infringes the right of trial by jury, or that the act is unconstitutional.

A division line between the Vaughn and Lewis tracts was not marked at the time of the original survey. The west line of these tracts, extended, is also the west line of the Stewart tract, the three in same block, and the location of the southwest corner of the Lewis and northwest corner of the Stewart being known, controls the intermediate corners of the tracts on that lino. By the official survey the west line of the Stewart tract is two hundred and twenty perches, of the Vaughn, two hundred and fifteen perches, and of the Lewis, one hundred and ninety perches. The actual distance is greater, which, proportionally distributed, locates tbe northwest corner of the Lewis tract one hundred and ninety-three and four-tenths perches from the known southwest corner. Taking this fact as true, the court directed a verdict for the plaintiff, evidently treating the aforesaid corners as the sole basis for the line of division.

On the east of these tracts were lands surveyed in 1785, and the east boundary from tbe southeast corner of the Lewis tract to the northeast corner of the Stewart, is by no means a direct line. The Jane Campbell tract is bounded north, south and west by parts of the Vaughn and Lewis tracts, the west line of these tracts being only one hundred and eight-five and four-tenths perches from the west line of the Jane Campbell. The southwest corner of the Jane Campbell tract is a biack oak, and the northwest corner a white oak, and the said black oak is a corner in the official survey of the Lewis tract, and the white oak a corner in the same survey of the Vauglm. These are as well defined as any other landmarks in the Lewis and Vaughn surveys, and have no less power because they are also the marks of an older survey. Tire official distance between these corners is, along the Lewis tract one hundred and twenty-seven perches, and along the Vanglm tract ninety-live perches, but the actual distance is greater, and should be apportioned by the same rule as was applied in fixing the division corners on the west line of the tracts. The same witness who testified on behalf of plaintiff fixing the line to which he recovered, also said that if the line were determined by the Jane Campbell corner, Parks would go further north — north of the line to which he claims. It is contended by the defendants, that if the line surveyed and marked in 1819 be set aside, the division line should be settled by said corners of the Jane Campbell tract. Why part of the ascertained landmarks should be cast aside so as to favor the owner of either the Vaughn or Lewis tract, is not explained by either party. No rule imperatively requires that the division line sliall be parallel with the northern or southern tract line, and though it would be so presumed in absence of landmarks, these maiks will control. If the ascertained corners on the west serve to locate the point of division on that, line, so will those on the east locate the point on the east line, and the division will be by a direct line between these points, whatever its course. This was decided in Watson v. Jones, 4 Nor. 117, where it is shown that all the ascertained marks on the ground are to be considered, remembering the rule that where.these are found, courses, calls and distances must give way.

If any question of fact depending upon oral testimony be in dispute it must be submitted to the jury. If there be dispute as to the location of any comer or corners, and consequently of where the division line should be, the jury shall decide it, unless the parties agree to submit the fact to the court or a referee. The iirst assignment is sustained. We are of opinion that there is no error in the rulings set forth in the remaining assignments.

Judgment reversed, and venire facias de novo awarded.  