Nolin v. Parmer

DARGAN, G. J. — This was an action of trespass, brought .to recover possession of the following described land: the [70] east half-of tbe north-east quarter of section twenty-six, township ten, range twenty-seven, situated in the county of Barbour. To show title to the land, the plaintiff introduced a patent from the Government of the United States, by which the land above described was granted to him. To identify the land, and prove that the defendant was in possession, the plaintiff introduced John McKinney, the county surveyor, who had surveyed the land at the plaintiff’s request, but without any order of court, and without notice to the defendant. This witness proved the survey which he had made, and also, that, according to such survey, the land in dispute was embraced by the plaintiff’s patent. Upon cross-examination, he stated, that all tbe knowledge he had respecting the boundaries of the land, was derived from the survey which he had made. The defendant then moved the court to exclude his testimony, which was done, and the plaintiff excepted. As respects sections of lands, the Government of the United States have fixed their boundaries, and marked their corners and lines, and it is clear that these boundaries, thus marked and established, cannot be altered or controlled by any other survey. But the lines run to divide the sections into halves and quarters, if erroneous, may be corrected, for they are sub-divided by law; and if the officer, in running the subdivision line, makes a mistake, it can be corrected by running the line according to law. Walters v. Commons, 2 Porter, 38. But the Government of the United States has never run any lines for the purpose of dividing quarter sections into half quarter sections, but has simply prescribed how the quarter section should be divided. When, therefore, the question is to locate a half quarter section, or to prove the line that separates the two half quarters, how can it be done but by a survey ? The answer must be, that the land must be surveyed in accordance with the lines and boundaries of the section; and if this is done correctly, the particular land can be ascertained beyond doubt. The objection, however, is, (as we understand it,) that the survey being ex parte, and not made in pursuance of an order of court, is not evidence. But the county surveyor is required by law to survey any land lying in his county, at [71] the request of the owner. Clay’s Dig. 358. And although such survey may not within itself be evidence, yet that the surveyor may be examined to prove the boundaries, and that he may illustrate his evidence by the survey so made, we entertain no doubt; and when the surveyor, by his own testimony, has proved the accuracy of his survey, it then may go to the jury as testimony tending to prove the locality of the land and its boundaries. When the question is, to ascertain the thing granted, or to apply the grant to its proper object, parol proof is always admissiblé, and the witness on the stand may, (if he can,) by way of illustrating his evidence, draw a plat or a diagram of the land, showing its locality and boundaries. None of the authorities referred to by the defendant’s counsel deny this proposition; and we think it clear, that if he may do so, even on the stand,' the survey which he is required to make by law may be used for this purpose. But, it is again contended, that the parol evidence was inadmissible, because the witness said that all the knowledge he had respecting the boundaries of the land was derived from the survey which he had made. But we do not understand from this, that the witness intended to say, that all his knowledge was derived from the paper he held in his hand, representing the survey, but, rather, that his knowledge of the boundaries arose from the survey he had made: that is, by going on the ground and running the lines, he was enabled, at the time he was testifying, to describe the land sued for, and to speak of its boundaries. The language of the bill of exceptions does not convey the idea, that the witness’ knowledge was derived from the figures or representations made by him on paper, but, rather, that his knowledge was derived from the fact that he had surveyed the land. . In any point .of view we are able to take of. this case, we think the court erred in rejecting the evidence, and the judgment must be reversed, and the cause remanded.