Bolton v. Lann

Wheeler, J. The general rules, to be observed in ascertaining boundaries or the locality or identity of lands, called' for in a deed or. grant, are well settled. Recourse is to be had, 1st, to natural objects ; 2nd, to artificial marks ; 3rd, to course and distance. The line of a tract of land may as well be the subject of a call, as any other object; and such a call will control course and distance. Assuming that it is true, as the plaintiff avers, that the dividing line between himself and the defendant, has been obscured and lost by accident and the lapse, of time, and cannot be ascertained but by an actual survey, and that it is dependent upon, and controlled by, the dividing line between the Kincheloe and Jackson leagues, the first point, to be ascertained by the Surveyor, was the true position of that dividing line. But he, it seems, commenced his work, if not upon the assumption, certainly with the predetermination, that it had [111] never been run. Proceeding, as he did, upon this conviction, it was' not unlikely that the result of his labor would be to verify it; especially as he did not set about searching for and finding the other lines of the surveys, some of which, at least, were well defined and known. The lower river corner, and the lower line of the Kincheloe league, were plainly marked and defined, and well known. From these, aided by the calls of the grant, there could be no difficulty in ascertaining where the upper line was, or ought to be. The actual marked lines and calls of the survey, were more certain and reliable means by which to ascertain the true position of a lost line of that survey, than its supposed conformity to other surveys upon the opposite side of the river. Again, if the dividing line between the plaintiff and defendant was never run, or cannot be found, and recourse musí b® had to the calls of the deed of partition between the heirs of Jackson, to ascertain the river corner of lots one and two, the calls of the deed must, of course, control and fix that corner. The plaintiff claims under that deed and is hound by it. If course and distance, as therein called for, are the only means by which to ascertain his boundaries, these must determine them. His conveyance gave him the rights of his vendors and no more. It is indisputable that the Surveyor adopted a different line from the true one, as the lower line of the Kincheloe league. There is as little doubt that he was in error, also, as to its upper line : that is, the dividing line between that and the Jackson league : and, consequently, he was in error as to the upper line of lot one, at the front or river end, between the plaintiff and defendant, even though he were justified by other matter of description contained in the partition deed and annexed plan, in giving a greater front on the river to that lot, than called for in the deed. His report is, upon its face, obnoxious to the objection taken to it, that his examination and labors appear to have been too much directed to the ascertain [112] ment of where the lines of the survey ought to have been, rather than to the finding of where they really were. The latter, which was the primary consideration, appears manifestly to have received too little of his attention. And for this reason, his report ought to have been set aside. But if not for reasons, appearing upon its face, still, when it was proved by the plaintiff’s witness, Stewart, that the Surveyor was so wide of the mark of finding the lower line of the Kincheloe league ; and by the defendant’s witnesses, Collins-worth and Calloway (the one the District Surveyor, and the other, as he states, well acquainted with the business,) that he was not only mistaken as to the lower line, but, in all probability to say the least, equally so, as well in supposing that the upper line had not been run and marked, as in reference to its true position, the report ought certainly to have been excluded from the jury, or wholly disregarded by them. It ought to have been rejected because it proceeded upon wrong premises ; it sought to make actual surveys yield to rules by which to make surveys. And the verdict of the jury, which was based upon it, ought to have been set aside, for the same reason ; not that it was against a preponderance of evidence merely ; but because it was contrary to law and the evidence. What are boundaries, is matter of law : where they are, is a matter of fact. And it is a matter of law, which juries cannot control, but which must control them, that where the lines of a survey have been run and can be found, they constitute the true boundaries, which must not be departed from, or made to yield to course and distance, or to any less certain and definite matter of description, or identity. The law upon this subject is well settled, (see authorities cited in George v. Thomas, supra) and its maintenance is essential to the security of titles. As was said by Chief Justice Gibson in Blasdell v. Bissell, (6 Burr, 259,) “ the lines actually traced on the ground, as shown “ by the land marks, and not those produced by the courses “ and distances, constitute the boundaries of the grant,” whefh [113] er by the government or by an individual. “ The calls of a “ survey, and not its courses and distances, are to govern : and “ where there are actual lines of demarkation, the compass and “ chain are no more than instruments to point them out.”— “ Carelessness of chain carriers, roughness of surface, varia- “ tion of the compass, imperfection of the instrument, unskill- “ fulness in the use of it, and other causes, not to be enumer- “ ated, inevitably produce, in every instance, more or less un- “ certainty of result; and if we suffer ourselves to be governed ‘‘by the compass and by measurement, collisions would be in- “ cessant.” The importance of finding the lines actually traced upon the ground, was not sufficiently regarded in executing the order of survey, or upon the trial. There is little cause to doubt, that the dividing line between the Kincheloe and Jackson leagues, had been actually run and marked, and might have been found and proved by competent means : a survey, of course, is not the only means ; any witness who knows the' fact, may be competent to prove the existence of a marked boundary line. When found, there can be no difficulty in ascertaining the dividing line between the plaintiff and defend, ant, from the calls of the deed of partition, if it cannot otherwise be found and traced. Should this become necessary, all the calls must of course be regarded. It is unnecessary, as the case is now presented, to express an opinion as to the effect upon the rights of the parties, of the defendant’s prior possession, the occupancy of the lot he claims, and the acquiescence of the plaintiff and those under whom he claims in that possession and occupancy. The evidence, upon another trial, may supersede the necessity of in= quiry upon that subject. It may be observed, however, that the acquiescence of the proprietors of adjoining lands, in a particular line, is not unfirequently referred to and received as evidence to determine their boundaries. Prior possession is notice of the claim of the person in possession, to the purchaser of adjoining lands ; and the case ought to be one of very clear [114] right, to warrant such purchaser in disturbing the boundaries adopted by the former proprietors, as evidenced by their express or tacit consent. It will suffice for the present disposition of the case, that the verdict was manifestly contrary, to law and the evidence ; and the Court therefore erred in refusing a new trial, for which the judgment must be reversed, and the cause remanded. Reversed and remanded.