
    Supreme Court of Pennsylvania. EASTERN DISTRICT.
    MANHATTAN COAL CO., v. JOHN GREEN.
    1. An older survey can not be changed or contradicted by the lines of a junior survey, and the latter must give way to the former.
    2. If the description in a warrant be loose and vague, a survey is necessary to identify the land; the title takes effect only from the time of the survey, and a junior warrant, containing an explicit description, issued before such survey is made, has precedence.
    3. A survey without a warrant is void, except the surveys allowed actual settlers under the act of April 3, I792.
    Error to the Court of Common Pleas of Schuylkill County,
   Opinion of the court delivered May 17, 1873, by

Agnew, J.

John Green, the plaintiff below, claimed title under a warrant in the name of Philip Myer, one of a block of thirteen surveys made by Henry Vanderslice, D. S., on the 18th to the 25th of May, 1794. The Myer survey, as claimed to be located, embraces parts of two surveys claimed by the defendants, contained in a block of fourteen surveys made by Henry Vanderslice, D. S., on the nth to the 18th of February, 1794; and also parts of two surveys claimed by the defendants, made by William Wheeler, D. S., on the 22d of January, 1794. Neither the Myer survey nor the four surveys claimed by the defendants, can be located by marks on the ground, applicable to them individually, but in each case the location is ascertained by the places they occupy in their respective blocks. The block surveys, however, are readily ascertained and identified by original marks, and older surveys found on the ground on- the north side of the block of thirteen surveys, and on the south side of the block of fourteen surveys.

As thus ascertained, there is not room between the older surveys for the whole number of surveys in each block. In this state of the case, that portion óf the block of thirteen surveys on its south side, which interferes with the northern portion of the block of fourteen surveys, must give way, the thirteen being younger in date than the fourteen. The instruction of the judge in this part of the case given in answer to the 8th, 9th, and nth points of the defendant, was correct except in the qualification of the answer to the 8th point as to the supposed mistake in the call upon the south side of the block of thirteen surveys. The qualification was in effect contradictory; for the block of thirteen being younger than the block of fourteen surveys, no mistake in the call of the former could affect the location of the latter. An older survey cannot be changed or contradicted by the lines of a junior survey. The calls of the latter, whether mistaken or true, do not limit the lines of the former. Carbon Run Improvement Co., v. Rockafeller, 1 Carey, 49; Belen v. Cleaver, 4 Wright 260. In affirming the defendant’s eleventh point, the court correctly informed the jury, that the proper way to locate the block of thirteen, was, first to run out the older blocks for which it called, and if there was not a sufficient vacancy left to contain the whole thirteen, those of the thirteen first surveyed would be entitled to the vacant land, but in no event could any of the younger block exclude any of the older block. The fact that the Philip Myer survey called for vacant land on the south and west, or that the call of the block of thirteen for the surveys in the block of fourteen was owing to a mistake in some way by Vander-slice, the D. S., could not affect the older block of fourteen or carry the Myer survey within its lines. The call of Philip Myer for vacant land south and west, makes it probable the surveyor thought it extended westward past the block of fourteen, as shown in a connected draft-of these blocks, (these two and the block on the north of both), but this would not justify an interference with the older surveys. The defendants were therefore entitled to an unqualified instruction that the block of fourteen surveys being previously located, none of the surveys in the younger block of thirteen could interfere with any of the former, and no mistake of the surveyor in locating, or in the calls of the thirteen, could affect the surveys in the block of fourteen. In this attitude of the case, the plaintiff was driven to another position. He claimed that the warrant of Philip Myer was precisely descriptive of the land in controversy, and on this ground, if found in its proper location, it antedated the defendant’s title, even though the location fell within the block of fourteen. This raises the question as to the description in the Myer’s warrant. Descriptive warrants are of two kinds, those which are precisely descriptive, and those which are only vaguely or loosely descriptive. The former are such as so clearly describe the land that it can be readily identified and the warrant applied.’ These take title from their date, the subject of the purchase being defined with sufficient certainty at the time of the application, On the other hand a vague or loose description only ascertains propinquity, and the land must still be defined by a survey in order to identify the subject of the purchase, and render it certain. In the latter case the title takes date only from the time of survey.

Hubley v. Van Horne, 7 S. &. R. 185, Norris v. Monen, 3 Watts, 469. Patterson v. Ross, 10, Harris 340.

In Patterson v. Ross, the warrant was for 400 acres of land, north and’ west of the rivers Ohio and Allegheny, and Conewango creek, on the west bank of Big Beaver creek, and to include the walnut bottom lying on the run that falls into said creek nearly opposite an island between the big and little falls, by estimation one mile above the .block-house. The ■evidence on the ground readily identified the big and little falls, the island, the site of the block-house, and the run falling into the creek on the west side nearly opposite the island, but the identity of the walnut bottom lying on the run was not clearly ascertained, the bottom along the run being large enough to admit of several tracts of 400 acres. It was held that the warrant was not precisely descriptive, and the title took •date only from the time of the survey. In regard to that for particular description, I think the idea of vagueness was carried to an extreme, and that probably that part of the description which required the tract to lie on the west bank of the creek, was not given its full force. But this .does not change the principle on which the case was decided, that a Vague or loose description gives title only from the survey, nor does it lessen the force of the illustration the case affords, in determining what is a vague description.

The description contained in the Philip Myers warrant, is as follows : 400 acres of land on a branch of Big Schuylkill called ‘Big Run,’ adjoining lands surveyed on a warrant granted to John Hartman, down the said creek one mile, near Tory path in Berks county.” Excepting so much of this description as locates the tract adjoining lands surveyed on a warrant granted to John Hartman, “the entire description is very loose and vague. No land is precisely ascertained by its being on Big Run. It is not said on what side of the run it lies, or whether across it, nor is it said how near or on what side of the Tory path it lies. “Down the creek one mile” must mean, if it mean anything, one mile down the creek from the survey of John Hartman. Otherwise the fact of adjoining that survey would be in itself a vague description, for it is.not said on what side of the Hartman survey the Myer land is to lie. The Hartman survey is, therefore, the key to the description. In Fox v. Lyon, 9 Casey, 479, it was held that a warrant to John Fox for land adjoining a survey in the name of Mordecai Massey, on the north, and land of Fowler & Co. surveyed to adjoin Mordecai Massey on the north, but lying 150 perches from the Fowler & Co. lands, was a shifted location. So in DeHaas v. DeHaas, 2 Yeates, 317, a survey, including a path and a chief part of the land lying westward of it, was viewed as deviating from the call in the warrant, which was for land “adjoining the path from Mahoning to Muncy creek, eastward of the said path,” etc. It is evident, therefore, that the description in the Myer warrant depends for its precision wholly on that part which calls for its “adjoining lands surveyed on a warrant granted to John Hartman.” Without that, “down the creek one mile,” is meaningless, and the Big run and Tory path afford no evidence of precise locality. It will be noticed that the call is not for a survey merely, which might send the inquirer in the land office to the ground to search for such a monument, but is for land surveyed on a warrant grahted to John Hartman< This description sends the inquirer directly to the files of the land office, and these discover no trace of such a warrant and survey existing at the date of the Philip Myer warrant, on the 27th of February, 1793. The only warrant to be found in the office, according to the evidence, in the name of John Hartman, bears date afterwards on the 3d of August, 1793, and the survey under it was made on the 21st of August, 1793. It is very clear, therefore, that this portion of the description in the Myer warrant, was notice of nothing to those who desired to take up lands in this vicinity, and was void for uncertainty. When an applicant for land is informed of an office right, and survey under it, he has the means at once by resorting to the files of the office, of ascertaining its location, and thus of avoiding an interference with it, in making his own survey. This is all important to him, for the state does not guarantee against loss when a junior warrant holder surveys in land appropriated to an older warrant. Hence when no search he can make will lead to information, it is clear he cannot have legal notice of the former appropriation by such a false description. In such a case he must suffer who by his false description leads away from notice.

Nor is the fact that a survey is mentioned to be disconnected from the statement that it was made on a warrant. A survey without warrant is. void, since the proprietary government and customs have ceased to exist, excepting surveys allowed to actual settlers, under the act of 3d April, 1792. Under the Penns, surveys were sometimes made without a precept, and the custom to receive them has been permitted to be proved. Woods v. Galbraith, 2 Yeates, 306, but since the divesting act of 27 November, 1779, the practice has not been allowed. Burton v. Smith, 1 Rawle, 403. The importance of notice of pre-existing rights to those who take up lands from the commonwealth, cannot be overrated, and is strongly set forth by Judge Rogers, in Roland v. Long, 1 Harris, 464, and by Judge Woodward, in Emery v. Spencer, 11 Harris, 271. Judge Rogers said, that an applicant is not bound to look beyond the land office, and although a warrant may be issued, and money paid, yet if there be no return of survey in the office, the title under the junior warrant will be good. This is not to be taken in an unqualified sense, yet it is evidence of the importance attached to the records of the land office. Any one, therefore, reading the description in the Philip Myer warrant, and then finding in the land office no such warrant as that of John Hartman referred to in it, would not be bound to look further, for there is no other place than the land office where such warrants are legally to be found. And knowing that a survey without a warrant is void, he would not be led to believe that such a survey could be meant, when the description asserts that it was made on a warrant. The result is, that the description in the Philip Myers warrant, that the tract adjoined lands surveyed on a warrant to John Hartman, is nugatory, and gives the warrant no precedence over junior claimants, and the remainder of the description being vague and uncertain, the title under the warrant takes date from the time of survey. This disposes of the case, and renders it unnecessary to pass upon the other assignments of error. The question becomes one of location merely, and if, as the evidence appears to show, the blocks surveys are identified by marks on the ground clearly indicating the location, the block of thirteen being younger than the block of fourteen, must give way to the latter, and the Philip Myer warrant not being precisely descriptive, must give way so far as it interferes with any of the surveys of the block of fourteen. Judgment reversed, and a venire de novo awarded.

F. B. Gowen, Esq., for plaintiff in error ; Hughes & Farquhariox defendant in error.  