91]

issued on the 27th of April, 1792, and that the | turn thereof, the details of which need not be
survey was made for the said George Moore on stated here.
the 21st of November, 1792. The survey is thus
described in the official return:

"A certain tract situated on the waters of
Towanda Creek, Luzerne County, beginning
at a post; thence by land of Joseph Betz and
Henry Betz north twenty-nine degrees east,
three hundred and eighteen perches to a hem-gether with the Cooley and other warrants to
lock; thence by vacant land north sixty-one
degrees west, two hundred perches to a post;
thence by the same and land of General Brod-
head south twenty-nine degrees west, three
hundred and eighteen perches to a post; and
thence by land of Samuel Cooley south sixty-
one degrees east, two hundred perches to the
beginning, containing three hundred and sev-
enty-five acres and allowance of six per cent
for roads," etc.

As evidence to show that the land in dispute is part of this George Moore tract, the plaintiff produced copies of the returns of these surveys, called for as adjoinders, the location of which, it is claimed, was fixed by the evidence beyond dispute. And in connection with that evidence he called several surveyors, who gave testimony, with maps and other returns, tending to show, by identifying the hemlock northeast corner, and other marks on the ground corresponding with the survey, that the Moore tract, located according to its calls, embraced the land in dispute.

The defendant, on his part, introduced evidence to show that the land in dispute was a portion of a tract of about 409 acres, surveyed March 24, 1794, in the warranty name of Andrew Tybout. He introduced a copy of a warrant and return of the Tybout tract and a patent from the State to one Daniel Brodhead for that tract. Evidence was also given by defendant showing that original marks were found on certain trees on the north, east, and south lines of the Tybout survey, and that the hemlock northeast corner, the sugar southeast corner, and the hemlock sapling southwest corner, called for in the return, were marked respectively as corners in 1794. The hemlock sapling had disappeared, but the defendant's surveyor determined the age of the corner by a witness found there, and by other signs.

In connection with this contention the defendant offered to give further evidence, founded upon examinations made upon the ground by surveyors to show that the Moore warrant was not actually surveyed on the ground according to its return of survey, but was surveyed, tothe south of it, in one block, of which the Moore was the northern member; that the north line of that block, if actually surveyed upon the ground in 1792, was run between the hemlock sapling and sugar corners, corresponding to what was claimed by the defendant to be the south line of the Andrew Tybout tract; that no line of 1792 was surveyed on the ground for the Moore warrant north from the hemlock sapling corner, nor west from the hemlock northeast corner of the Tybout tract; and that the line south from the hemlock northeast corner aforesaid was run for warrants to the east of said line, and was merely adopted by the return of the Moore survey. To this evidence the plaintiff objected on the ground that twentyone years and upwards having elapsed from the date of the Moore survey, there was a presumption juris et de jure that the said survey had been made as returned, and that the evidence was, therefore, inadmissible. The court sustained this objection and excluded the evidence so offered, to which ruling the defendant excepted.

The defendant also contended on the trial of the case that the plaintiff was estopped from setting up any claim to the land in dispute, by reason of certain alleged acts and declarations of his, and of his duly authorized agent, one Jacob De Witt.

The evidence which it produced on this subject tended to establish the following facts: Prior to the year 1866, the plaintiff, at that time a resident of New York City, purchased a large amount of lands lying east of and adjoining those of the Schraeder Land Company, the predecessor of this defendant, and including the tract in controversy, none of which lands he had ever seen. Soon after that purchase he employed Jacob De Witt as his agent and attorney in the management and protection of said lands from depredations, etc., and gave him full power and authority to carry out the purposes of his agency.

Defendant also introduced evidence of certain surveyors, tending to show that no marks upon the ground had ever been found for the Moore survey on the line north from the hem- The land company having in contemplation lock sapling corner, or on the line west from the erection of a saw mill and extensive lumthe hemlock northeast corner thereof, which bering operations, and being desirous of paintbore the date of such survey. In this connec-ing a boundary line of its lands as a guard tion, it put in evidence certain official maps from the land office of Pennsylvania, showing the location of what is known as the General Brodhead lands, lying west of the west line of the Moore survey extended southerly; and also produced evidence tending to show that a line bearing marks dating 1792 was found from the sugar tree, the southeast corner of the Tybout tract, to the hemlock sapling corner mentioned, and that the sugar tree was marked as a corner of 1792, and that a corner of 1792 was found 21 at the hemlock sapling corner. Other evidence was introduced by the defendant designed to show the nonexistence of an actual survey of the Moore warrant according to the official re

against trespassing upon the lands of adjoining
owners, informed De Witt of its intentions;
and, upon his assent thereto, as plaintiff's
agent, the company employed on its own re-
sponsibility one Z. F. Walker to run and paint
such line. Walker knew nothing of any con-
ference having taken place between De Witt
and the company upon the subject of the paint-
ed line. He was paid for his work by the com-
pany alone, and his instructions to paint the
boundary line of the Schraeder lands were re-
ceived from it.

Having in his possession certain old maps of
the lands in that neighborhood, including both
the Moore and Tybout tracts, some of which

[693]

[694]

[695]

Afterwards, De Witt, having examined certain portions of this painted line, assented to it as a correct boundary line between the lands of the company and those under his management and control.

showed the interference between these two | the official return, so that the latter was a pho-
tracts, and certain old field notes made by a tograph of the former. It was also proved that
surveyor in 1828 while surveying the Brodhead the hemlock northeast corner, called for in the
lands, Walker went upon the lands and painted Moore survey, was identified; that that hem-
a line on the north, east, and south sides of lock was the northwest corner called for in the
the Tybout tract, according to its location Henry Betz return of survey, which adjoined
claimed by the defendant.
the George Moore survey on the east for about
two thirds of the length of its line, and was
separated therefrom by an old line marked as
early as 1784, and re-marked in 1792 and sub-
sequent years, extending several miles south-
erly; that south of the Henry Betz survey and
George Moore survey on the east is the Joseph
Betz tract; and that both of these Betz tracts
were surveyed on the 4th of July, 1793, and
were returned into the land office on the 16th
of April, 1794, at the same time the return of
the Moore survey was made, their location
being undisputed.

This occurred in the summer of 1866. In the following fall two members of the executive committee which had charge of the affairs of the land company, went to New York City to see the plaintiff and assure themselves of De Witt's authority for establishing the painted line. They saw plaintiff and informed him of the transaction that had taken place with re gard to the running of the painted line. He replied to them that he had never been on the lands, but that De Witt was his attorney and agent in the matter, and what De Witt did met his approval. In 1869, after most of the cutting had been done, De Witt again expressed himself as satisfied with the painted line.

It is shown that along the southern portion of its western line the George Moore is bounded on the west by a tract in the warranty name of Robert Irwin, surveyed November 22, 1792, and returned into the land office the same day as the Moore survey. This Irwin tract was a part of a large body of lands known as the General Brodhead lands, whose eastern line A question also arose in the progress of the extended southerly, identified by the surveyors trial as to the time to which the plaintiff was by marks bearing date 1792; and that on entitled to claim damages, it being contended the south the George Moore adjoins the Samuel by the defendant that he had sold and conveyed Cooley survey, whose location is not disputed. the lands in question to Jacob De Witt on the We concur with the circuit court that the second of November, 1869, by an absolute deed Moore survey, if located according to its calls of general warranty, a copy of which was in-as made in the official return in the land office, troduced in evidence. The plaintiff, however, claimed that that deed was to be considered not alone but in connection with a certain other agreement between the parties thereto, which was also introduced in evidence, and that when so considered, it showed that title to the lands embraced in it did not pass to De Witt until October 1, 1870. Plaintiff's oral evidence on this point was also to the same effect.

So far as the record shows, there was no serious dispute between the parties as to the cutting down, removal, and appropriation of the timber complained of, or as to the amount and value thereof, or as to the fact that all of the alleged trespasses had been committed within a certain boundary marked by a line of trees blazed and painted white, known as the paint ed line, which was claimed to have been established by consent of the parties.

It also appears from the record that the hemlock northeast corner tree, called for in the George Moore return of survey, was identical with the hemlock northeast corner called for by the Andrew Tybout return of survey, and that the said surveys, by running from this common corner, according to their respective returns, would overlap and include within the same boundaries about 325 acres, being the tract on which the cutting, etc., complained of occurred.

The first and decisive question is, Who owned this overlapped land at the time the timber was cut, the plaintiff who holds title to the Moore warrant and survey of 1792, or the defendant holding title under the Tybout warrant and survey of 1794? As we have seen, it was clearly established that the adjoinders to the location on the ground corresponded exactly with the adjoinders named in

would include within its limits the tract where the timber was cut by the defendant and its agents. The question then is presented, Why should it not be located according to these calls? That the Moore warrant is older than the Tybout warrant is indisputable. That it was regularly and legally granted on the 24th of April, 1792, to Moore is not questioned; and that it was legally surveyed in the same year appears on the face of the official return duly certified. All the presumptions favor the regularity, fairness, and legality of a survey thus authenticated. The calls for adjoining surveys are regarded by the Law of Pennsylvania as high and important evidence in determining the true location of a survey superior in character to the courses and distances therein described, and next in conclusiveness to living monuments and original marks upon the ground. Upon what ground, then, can it be contended that the adjoining surveys, a living monument, and many of the marks upon the ground, called for in the official return, should not determine the location of the George Moore survey? The only conceivable ground is the one asserted by the defendant below, that there was, as matter of fact, no such actual survey as the one exhibited in the official return; that, in other words, the Moore warrant was never actually surveyed on the ground according to its return of survey. In support of this contention the defendant offered evidence to show that the official return was a chamber location, never having been made in fact. The evidence was rejected by the court, upon the ground, as stated in its charge to the jury, that ** an old survey like that of the George Moore cannot be questioned at this late day by any parties claiming under a junior title, whether that title took

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97]

its origin within twenty or twenty-one years of | tion is not conclusive, and may be rebutted by
the older survey, or after that time.' This ac- the proof of original marks and monuments
tion and ruling form the basis of numerous tending to show that the actual location on the
assignments of error. We think the court did ground was different from the official courses
not err, either in rejecting the testimony or in and distances. The whole issue in the case
the charge. Many of the authorities cited by was as to the relative weight to be attached to
the counsel for plaintiff in error, carefully ex- these two classes of evidence in case of a discrep-
amined, support the principle laid down by the ancy between them, and whether the period
court with reference to chamber surveys in of prescription could be invoked in behalf of
Pennsylvania.
the one class as conclusive against the other.
At an early day in that State great abuses The contention, as in this case, that no survey
crept into the administration of its land office was actually made, and that the official return
system, growing out of the illegal acts of the of the survey relied on was a chamber survey,
surveyors, who, instead of going into the field presents a different question, and involves the
and establishing the lines and marking corners application of a different principle. And it
upon the ground, would make drafts on paper may now be regarded as settled by the latest
of pretended surveys, and return them into the adjudications of the Supreme Court of Penn-
land office as duly certified. These false, fraud-sylvania that, after a survey has been returned
ulent pretenses of surveys, never made, were
called chamber surveys. Owing to the con-
fusion and uncertainty of titles arising from
the numerous patents issued, and the large
quantities of land purchased in good faith un-
der these fabricated surveys, the courts found
it expedient, for the common good and the
promotion of peace and quiet in the commun-
ity, to hold that when a warrant was returned
as regularly surveyed, and this official return
allowed to remain unchallenged for twenty-one
years, it was strong presumptive evidence of the
regularity and legality of the survey. Many of
the earlier decisions in Pennsylvania, cited by
the counsel for plaintiff in error, held this pre-
sumption to be prima facie only, and subject to
rebutting proofs. But the later adjudications
are in harmony with the doctrine announced
by the circuit court. Such was the decision of
the supreme court in the case of Packer v.
Schraeder Mining & Manufacturing Company,
97 Pa. 379.

more than twenty-one years, the presumption
that it has been actually and legally made is
conclusive, and cannot be controverted by a par-
ty claiming under a junior survey.

The specifications of error, from eight to fif-
teen inclusive, are based upon the charge of
the Circuit Justice with reference to the al-
leged consent of Jacob De Witt, the agent of
Packer, to the establishment of what is known
as the painted line, up to which it was under-
stood that the Schraeder Company might cut
the timber.

The court charged the jury that the evidence
relating to this painted line, and to the assent
given to it by DeWitt, and afterwards ap-
proved by Packer, could have no influence on
the question of title under the plea of liberum
tenementum; that the assent was given not to
settle a dispute, but to acquiesce in the running
of a line about which no dispute had then
arisen, and upon the supposition that the per-
son engaged in running it knew where the true
There is nothing in the case of Clement v. lines were; that it was an acquiescence result-
Packer, 125 U. S. 309 [31:721], contrary to this ing from a pure mistake and error, which
view. The decision in that case had no applica- should not bind the plaintiff or estop him from
tion to the subject of chamber surveys. The claiming his rights when he discovered the mis-
controversy arose as to the location of one line take. We think the court in its charge brought
of a tract, the actual survey of which was ad-out clearly and fairly before the jury the dis-
mitted and insisted on by both parties. The
only question was as to the true mode of ascer-
taining the location of the disputed line, the
plaintiff below contending that the survey as
marked upon the ground would properly define
its position, whilst the defendant contended that
the location should be determined by the courses
and distances described in the survey, disregard-
ing the marks called for and said to be found
on the ground.

The court decided that the true mode of ascertaining the lines of a survey was to run them according to the marks and monuments on the ground made by the surveyor at the time of the survey, along with the lines and distances in the official return when these latter corresponded with such marks and monuments; but in case of a conflict and variance, the original marks and monuments were to prevail and determine the location of the line in dispute. It also held that after the lapse of twenty-one years from the return of a survey, the presumption is that the warant was located as returned by the surveyor of the land office; and that in the absence of rebutting facts, the official courses and distances will determine the location of the disputed line or corner; but that this presump

tinction between a mutual undertaking to ad-
just and settle a doubtful and disputed dividing
line, in case of conflicting titles, on the one
hand, and, on the other, the consent of parties
to mark a boundary supposed to run between
undisputed tracts, but in ignorance and mis-
take of both as to the existence of any conflict.

Upon the claim of the plaintiff in error that
the consent of Packer to the running of the
painted line, amounted to a leave and license to
cut the timber up to that line, the court charged
that the adoption of a boundary line by mis-
take had no element of license in it, and does
not necessarily indicate intention on the part
of either Packer to give, or of the Schraeder
Company to receive, a license to cut and ap-
propriate timber on Packer's lands.

We cannot discover any error in this part of the charge to the jury.

The Pennsylvania decisions cited by counsel in support of the assignments of error vary very much from the case at bar. Most of them are cases in which the boundary was agreed upon as a settlement of a dispute. In the others, the party setting up the estoppel had been misled as to a material fact by the false or mistaken representation of the party making

[698]

[699]

[700]

[512]

view-reference of whole case—when partner
cannot engage in separate business-mining
partnership.

1. The findings of a master in chancery, upon a
matter referred to him in a cause, are advisory to
the court, which it may accept or disregard, accord-
ing to its own judgment as to the weight of the
evidence.

2. It is not within the general province of a mas-
ter to pass upon all the issues in an equity case, and
the court cannot refer to him the entire decision of
a case without the consent of the parties.

3. But when the parties consent to a reference of
a case to a master to hear and decide all the issues
therein, and such reference is entered as a rule of
the court, his findings cannot be disregarded at the
mere discretion of the court, but are to be taken as
presumptively correct-subject, however, to be re-
der of the court for manifest error.
viewed under the reservation contained in the or-

a claim inconsistent with such representation.
In the case of Perkins v. Gay, 3 Serg. & R.
327, 331, the remarks of Mr. Justice Gibson,
quoted by plaintiff in error, apply expressly
and solely to "a settlement of a disputed
right." In the next paragraph he says:
"If the parties, from misapprehension, adjust
their fences and exercise acts of ownership in
conformity with a line which turns out not to
be the true boundary, or permission be igno-
rantly given to place a fence on the land of the
party, this will not amount to an agreement or
be binding as an assent of the parties; and I
agree it is a principle of equity that the parties
to an agreement must be acquainted with the
extent of their rights and the nature of the in-
formation they can call for respecting them,
else they will not be bound. The reason is,
that they proceed under an idea that the fact
which is the inducement to the agreement is in
a particular way, and give their assent, not ab-
solutely, but on conditions that are falsified by
the event"-citing Turner v. Turner, 2 Ch. may convey his interest to another person without
Rep. 154; Bingham v. Bingham, 1 Ves. Sr. dissolving the partnership, or may purchase inter-
126; Gee v. Spencer, 1 Vern. 32; Pusey v. Des-ests in other mines for his own benefit without be
ing required to account therefor to the partner.
bouvrie, 3 P. Wms. 316.
ship.
[No. 169.]
Argued Jan. 21, 22, 1889.

The decisions in the other States generally support the rule that owners of adjacent tracts of land are not bound by consent to a boundary which has been defined under a mistaken apprehension that it is the true line, each claiming only the true line, wherever it may be found, and that in such case neither party is precluded or estopped from claiming his own rights under the true one, when it is discovered. Nor can such consent in an action of trespass quare clausum fregit, upon the theory of leave and license given, operate as an estoppel upon the claim of a plaintiff to 'recover damages to the extent of the value of the timber taken, any more than it can under the plea of liberum tenementum devest his title to land on which the alleged cutting and removal were committed.

4. A court of chancery, with consent of parties,
may refer a whole case to a master.
business cannot secretly engage on his own account
5. One member of a partnership in a particular
in such business and keep his earnings to himself;
a court of equity will subject such earnings to the
benefit of the partnership.
6. In a mining partnership, however, a member

1889.

Decided March 5,

APPEAL from a decree of the Circuit Court
of the United States for the Northern Dis-
trict of Ohio, Eastern Division, dismissing a
suit by one partner against the other for an
accounting in regard to alleged partnership
transactions. Reversed.

Statement by Mr. Justice Field:

On the 27th of April, 1878, the complainant,
Kimberly, and the defendant, Hannah M.
Arms, executed the following articles of agree-
ment:

"Articles of Agreement, Made and concluded
this 27th day of April, A. D. 1878, by and be-
tween Hannah M. Arms, of Youngstown,
There remain three other assignments of er- Mahoning County and State of Ohio, party of
ror not yet disposed of, which do not call for the first part, and Peter L. Kimberly, of
any extended notice: First, in relation to the Sharon, Mercer County and State of Pennsyl
refusal of the circuit court to remand this vania, of the other part, Witnesseth, That the
cause to the state court in which it originated. said parties have agreed, and by these presents
The reply to this is, the petition for removal do agree, to associate themselves in the art,
into the circuit court was filed before the final trade and business of leasing, prospecting, buy.
hearing of the case, and therefore in time. ing, mining, working and operating and deal-
Hess v. Reynolds, 113 U. S. 73 [28: 927].ing in lead, iron, silver, gold and other min.
Second, as to the alleged refusal of the court to erals, together with the lands on which the
allow the defendant to plead the Statute of same may be located, and to do and perform
Limitations. The record shows no such or all things belonging to said trade or business,
der. The 16th and 17th assignments of error, which said copartnership shall commence on
relating to the time to which plaintiff was en- the 27th day of April, A. D. 1878, and con-
titled to claim damages, are fully covered by tinue until dissolved by either or both of said
the charge of the court that the plaintiff, if en-parties. And to that end and purpose said
titled to recover at all, was entitled to recover
damages for all cutting and carrying away of
timber from the disputed premises up to the
time he actually sold, etc.

The judgment of the Circuit Court is affirmed.

Hannah M. Arms has this day paid in as capital stock six thousand dollars, and the said Peter L. Kimberly has paid in as capital stock six thousand dollars, which said twelve thousand dollars shall be used, laid out and employed in common between them for their mutual advantage. It is also agreed that all gains, profits and increase as shall arise by reason of said joint business shall be divided equally, share and share alike, between said parties, and that all losses that shall happen to said joint business shall be shared and borne Findings of master in chancery-reference-re-l equally between said parties alike.

v.

PETER L. KIMBERLY, Appt.,
CHARLES D. ARMS ET AL.

(See S. C. Reporter's ed. 512-530.)

[513]

"That said business shall be carried on un- | gold pieces. It does not appear that any fur514] der the name and style of Arms & Kimberly, ther account of his expenditure of the moneys Charles D. Arms, Agent. That Charles D. was ever rendered. Arms shall act as agent for said firm, and receive in compensation for his services the sum of twenty-five hundred dollars per annum, or at that rate, while in their employ. That said business shall be carried on in the Territories or States in the United States, or some of them.

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