Boynton v. Urian

The opinion of the court was delivered, May 13th 1867, by Thompson, J. — These are cross writs of error to the same judgment, and, involve questions of boundary and seniority of location. The plaintiff below owned a tract of land, for which a warrant was issued on the 24th of February 1794, and which was surveyed the 28th of October following, returned to the land office on the 24th of February 1795, and patented in April following. One of the boundaries claimed for the tract by the plaintiff below was disputed by the defendants, now plaintiffs in error, as interfering with their tract, which was surveyed on the 21st of October 1794, on a warrant dated 21st of January 1794, returned the 29th of April 1795, and patented the 6th of November 1804. The latter was, therefore, the oldest in location by eight days; while the former was first returned and patented, and became the leading warrant in the office as to the latter, by calling for the former in the patent. There was a block of Drinker warrants surveyed on the same day, of which the plaintiff’s was one. In ascertaining the location of either of them now, it is necessary to begin with the first or leading warrant, and fixing that by its corners or boundary lines, the rest would be located by the first in consecutive order, the second bounding on the first, with its proper courses and distances, unless excluded by an actual line on the ground, which was not pretended; and the third adjoining on the second, with its proper courses and distances, would locate the tracts respectively. Nothing could prevent the last of the lines from its distance but a line on the ground, for its boundary, or as the boundary of [152] another and prior warrant. In either case it could go no further. In the case in hand, if the plaintiff’s western boundary was not marked on the ground, it could be fixed by its distance, measuring and calculating from the corner of the leading warrant of the block. But suppose the defendant’s eastern boundary was in the same situation, and this the jury must have found ; even if the oldest survey, it would take only its distance, and no more. Courses and distances make the survey, where lines on the ground are not to be found, except in case of calls for adjoiners. The defendant’s theory was, that his eastern boundary was run upon the ground. But this was negatived by the jury, and the line of 1794 insisted on was decided to be the boundary between the two competing tracts by the jury ; they determined the location of the tracts by the courses and distances; in other words, gave the defendant his distance and the plaintiffs the balance, which was included in his proper distance. So far all depended on the facts, and the law applicable to the questions of fact was properly laid down by the learned judge, as to questions of location. But the plaintiffs in error, in the first of the above-named cases, complain of his charge on the question of practical mensuration; 'we think, however, without good reason. Surface measurement is the only kind in practice by the district surveyors of this state. But in making that, it is usual for the surveyor in chaining over an uneven surface to make allowance by elevating the chain. There was nothing to show that this was not the practice when the oi’iginal survey was executed; whatever it was, would regulate the measurement now; and we see no error, therefore, in the answer of the learned judge to the defendant’s point, that they were entitled to the measurement adopted by the surveyor who located the warrants. In other words, to the ordinary measurement of official surveyors. After a careful examination of the errors assigned, we see nothing in the first of the cases that needs to be corrected, and the Judgment is affirmed. As to the second writ, we have but little to say. The defendant in error in the other case brings this writ. It would not benefit him, as we can see, to disaffirm the opinion of the judge on the points whereon he assigns error. Nor would it be doing him much service to reverse his own judgment on the ground of his complaint; for on another trial we do not perceive that he could gain anything more than he has gained already. He has obtained a verdict, and judgment for all the land he claimed. If, therefore, there was error in the particular referred to, which we do not decide, it did the plaintiff no harm, and for harmless error we never reverse. Judgment affirmed.