Thomas v. Mowrer

The opinion of the court was delivered by Gibson, C. J. The principles stated by my brother Burnside, when the cause was here before, are indisputable; but they are inapplicable to the state of the case as they are now presented by the evidence. It was assumed to have been proved at the former trial, that the dead black-oak corner of the McDonald survey is a recognised monument of the Millard survey, and that the chestnut oak is a corner of it. Both are called for in the return of survey —not in the warrant; but both are clearly shown to have been marked as monuments only of the McDonald survey. The chestnut oak was marked as a sight-tree on it; but not as it would have been, had it been a corner of the Millard survey. There is not a particle of evidence from marks on the ground that a line was run corresponding with those trees; but the line claimed for the Lee survey, as the dividing one between it and the Millard survey, is distinctly marked; and both these surveys were returned by the courses and distances of it. We have then, on the one hand, concurrent returns of the same courses and distances, and an actual line corresponding with them; and on the other, a call for an adjacent survey. Which is to prevail ? From sweeping expressions of the judge who delivered the opinion in Hartley v. Martz, 4 Watts 262, it might seem that, except in extreme'circumstances, the calls of a survey override every thing else; but the true principle of that case is stated by my brother Burnside, in Walker v. Smith, 2 Barr 44, where it is shown that the lines on the ground constitute the survey, and control the calls for a natural or other fixed boundary. Here the courses and distances called for in the return, are the same as the courses and distances marked upon the [144] ground; .and the discrepancy in the case is between these and a call for a particular adjoiner. There is call against call; and the line on the ground is decisive. On the principle of the maxim, de minimis, a very slight variance might be immaterial; but here the consequence would be a loss of forty acres; and the judge who tried the cause was therefore right in directing, the jury to go by the actual survey. Judgment affirmed.