Absent. LIVINGSTON, J. STORY, J. & TODD, J.
ERROR to the Circuit Court for the district of East
Tennessee, in an action of ejectment brought by the Plaintiff in error against the Defendants.
The case is thus stated by the chief justice in delivering the opinion of the Court.
'On the trial the Plaintiff produced two patents for 5000 acres each, from the state of North Carolina, granting to Stockley Donalson, from whom the Plaintiff derived his title, two several tracts of land lying on Crow Creek, the one, No. 12, beginning at a box elder standing on a ridge corner to No. 11, &c. 'as by the plat hereunto annexed will appear.' The plat and certificate of survey were annexed to the grant.
The Plaintiff proved that there were eleven other grants of the same date for 5000 acres each, issued from the state of North Carolina, designated as a chain of surveys joining each other from No. 1 to No. 11, inclusive, each calling for land on Crow Creek, as a general call, and the courses and distances of which, as described in the grants, are the same with the grants produced to the jury. It was also proved that the beginning of the first grant was marked and intended as the beginning corner of No. 1, but no other tree was marked, nor was any survey ever made, but the plat was made out at Raleigh, and does not express on its face that the lines were run by the true meridian. It was also proved that the beginning corner of No. 1, stood on the north west side of Crow Creek, and the line, running thence down the creek, and called for in the plat and patent, is south 40 degrees west. It further appeared that Crow Creek runs through a valley of good land, which is on an average about three miles wide, between mountains unfit for cultivation, and which extends from the beginning of the survey No. 1, in the said chain of surveys, until it reaches below survey No. 13, in nearly a straight line, the course of which is nearly south thirty-five degrees west by the needle, and south forty degrees west by the true meridian. That in the face of the plats aunexed to the grants, the creek is represented as running through and across each grant. The lines in the certificate of survey do not expressly call for crossing the creek; but each certificate and grant calls generally for land lying on Crow Creck. If the lines of the tracts herein before mentioned No. 12 and 13, in the said chain of surveys, be run according to the course of the needle and the distances called for, they will not include Crow Creek or any part of it, and will not include the land in possession of the Defendants. If they be run according to the true meridian, or so as to include Crow Creek, they will include the lands in possession of the Defendants. Whereupon the counsel for the Plaintiff moved the Court to instruct the jury.
1. That the lines of the said lands ought to be run according to the true meridian and not according to the needle.
2. That the lines ought to be run so as to include Crow Creek and the lands in possession of the Defendants.
The Court overruled both these motions and instructed the jury that the said grant must be run according to the course of the needle and the distances called for in the said grants, and that the same could not be legally run so as to include Crow Creek, and that the said grants did not include the lands in possession of the Defendants. To this opinion an exception was taken by the Plaintiffs counsel. A verdict and judgment were rendered for the Defendants, and that judgment is now before this Court on a writ of error.'
The chief justice in stating the case, omitted the fact that testimony was offered by the Plaintiff at the trial to prove 'that the surveyor who made the plats and certificates of survey annexed to the grants, had regard to the true meridian, and not to the course of the needle, in making the said certificates of survey, and intended the courses of the surveys so to be run;' which testimony was rejected, by the Court below, as inadmissible–but the Court admitted evidence 'that the general practice of making surveys by surveyors has been to run to the courses of the needle.'
SWANN, for the Plaintiff in error.
The Court below ought not to have rejected the testimony to prove the intention of the surveyor to run the lines of these grants by the true meridian. It corroborates the plat annexed to the grant. The rule of construction as to grants from the state, especially in Virginia, N. Carolina and Tennessee, differs from the rule as to other deeds. Course and distance may be controled by parol evidence of the actual manner in which the survey was made, and of the actual marks and bounds made upon the land at the time of the survey. The Courts have not stopped at a natural object called for, if parol evidence be given that according to the actual survey the line extended beyond that object. The marks control the course and distance of the patent. 1 Hen. and Mun. 77, Baker v. Glasscock. Taylor's N. Carolina Rep. 116, Hayward's Rep. 238, 378–MS. Rep. Blount's Lessee v. Masters. 3 Call. 239, Herbert v. Wise.
If the witness had testified that a survey had been actually made and that it included the creek, it would have been admissible testimony. But the plat was intended to be a substitute for an actual survey. It was a part of the patent, annexed to it and referred to by it. It was as much a part of the patent as if it had been inserted in it. It shows that the land ought to be laid off so as to include the creek, as plainly as if the patent had expressed it in words. The course, south 40 degrees west, is ambiguous–it may mean a magnetic or a meridional course. The question is what was the intention of the surveyor? How shall it be ascertained? The most direct mode of ascertaing it is to prove his declarations at the time. It is true that by proving what was the general practice of surveyors you may infer his intention–but that is a secondary mode of proof, and less certain than proof of his declarations at the time he made the particular survey in question. This is not bringing parol evidence to contradict or to control the plat, but to corroborate and confirm it.
If a grant is capable of two constructions, the Court must adopt that which is most beneficial to the ...