Thomas' Lessee v. Godfrey

Buchanan, Cli. J., delivered the opinion of the court. The action was brought for a tract of land called “ The Valley of Owen,” and the question is, how that land should be located, which depends upon the construction of the patent. That the construction of a grant falls peculiarly within the province of the court, and is not a matter proper to he submitted to a jury, except in a case of latent ambiguity, is a principle too long and too well established, now to he disputed in this court. What then is the construction proper to be given to the patent for “ The Valley of Owen ?” The expressions are, “ beginning at a bound hickory on the side of a hill, on the south side of the main falls of Paiapsco, respecting to the west Chew's Resolution Manor, and running with the said Manor, south 53 degrees west, 200 perches to a hound hickory; then north west, 340 perches, to a hound white oak; then north 53 degrees east, 250 perches, to the main falls of, with the main falls, by a direct line to the first bound tree.” It is a well established and known rule of construction in the courts of this State, that calls, whether to artificial or natural objects, are to be preferred to courses and distances; therefore, when a tract of land is described by courses and distances, and calls, the calls are to be gratified in the construction of the grant, if they can be established, and the courses and distances disregarded, if they do not correspond with the calls. The better reason for which, is believed to be the greater certainty afforded by calls, than by courses and distances. In this case it is contended, that the expressions, “ and running with the said manor,” constitute a peremptory call to the tract of land called ££ Chew's Resolution Manor,” and that ££ The Valley of Owen” must be located to hind on that tract, and it was so decided by the court below. But we think they were not used in that sense ; and that being associated with a course and distance expressed in the patent, and a further call to a tree, a fixed and natural object, they are not to be interpreted as importing an imperative, or peremptory call, to run [150] with, and bind upon “ Chew’s Resolution Manor," but that the tree called for, was intended as the principal object, the boundary to regulate the location of that line ; and the reference to “ Chew’s Resolution Manor," and the course and distance expressed, directory only to that object, and introduced but as a means of arriving at it. The expressions used are, “ and running with the said manor south 53 degrees west, 200 perches to a bound hickory." It is not the case of a course and distance line of one tract of land, calling to, or to run with, or bind upon, a water course, or another tract of land, or a line of another tract, with no ulterior object called for, and looking only to the water course, or other tract, or line, as the definite object to be reached or run with, and to which the course and distance expressed, if not corresponding with it, is made to yield. But here, there is a fixed ulterior object, a tree imperatively called for and designated as the boundary intended to be run to; which intention, apparent upon the face of the patent, explaining and qualifying the expressions “ running with the said manor,” and showing them to have been used, not as binding expressions, but as directory only to the tree called for, must be gratified, by running the first line from the beginning tree, to the tree called for, (if it can be proved,) in the manner directed in the patent, if that can be done ; but if it cannot be done, either by running the course and distance expressed, or by a running binding upon the manor, then, the direction failing, a course must be shaped from the beginning directly to the tree called for, without regard to either the manor, or the course and distance expressed; the true position of that tree to be determined by a jury, whose province it always is, to find facts, and to ascertain the true position of the object called for, from the evidence submitted to them ; but not to determine the question, whether or in what manner a call shall be gratified, or any question of construction arising upon the face of the patent. That belongs exclusively to the court, whose peculiar province it is to ex [151] pound patents, according to the intention to be collected from the terms or expressions used, and not on facts or matter aliunde. Where a tract of land, or a line of a tract of land, is peremptorily called for as the governing object, it controls the course and distance for the greater certainty. But where such a line is referred to, with a view to another object peremptorily called for, that object is the imperative call, and not tlie line referred to; and must be gratified, whether its position corresponds with the line referred to or not. As where there is a call to a tree, described as standing in, or at the end of a specified line of another tract of laud, then the reference to the Hue, is not considered as a peremptory call, controlling the call to the tree; but the call to the tree is the imperative call, and must be gratified if it can be established, no matter where it stands, without regard to the line ; which is to be taken, as intended only as a designatio loci, where the tree was supposed to stand. We differ therefore with the court below, in the opinion, that the expressions, “running with the said manor” as used in the patent for the Valley of Owen, constitute a peremptory call, and that the first line of that, must be located to bind on the laud called Chew’s Resolution Manor. But as the patent was rejected on the ground, that there was no location of it upon the plots, returned in the cause, corresponding with the description and calls expressed, it is necessary to inquire, how the home or given line should bo located, which is not altogether free from difficulty. The third line has a call to the main falls, and from that point the description is, “with the main falls by a direct line to the first bound tree.” And the question is, whether that line should be run with the meanders of the stream, or directly from the termination of the third line on the falls, to the beginning tree ? Where there are too inconsistent expressions or calls, both of which cannot be gratified, but either of which standing alone, would be imperative, that which appears to he the most certain and most consonant to the intention apparent upon the face of the patent, should [152] in the construction of it, be preferred, for the same reason that calls are preferred to courses and distances, because more certain. Or, if there is any thing on the face of the patent to explain or qualify one of them, so as to show that the other was intended to be the governing or imperative call, it should be so treated. Here the expressions, “with the main falls,” and “by a direct line,” to the first bound tree, are inconsistent, and cannot both be gratified, if the stream is not straight, or does not run to the beginning tree; and it seems to us, that the expressions, “with the main falls,” are so qualified by the other expressions, “by a direct line,” as to show, that the latter were intended as the governing or controlling expressions, and that the given line should be run directly from the place of departure to the beginning tree, the object imperatively called for, and that by the words, “with the main falls,” the general course of the stream was meant, the meanders of which could not be pursued by a single direct line. If it was intended that the survey should be closed, by pursuing the meanders of the stream from the end of the third line to the beginning tree, the expressions would properly and most probably have been “with the main falls to the first bound tree,” and not as they are, “by a direct line” to the first bound tree. Which addition of the words, “by a direct line,” shows that the meanders of the stream were not intended, which could not be by a direct line, but that it was intended to close the survey by a single line drawn from one point to the other. Besides, the beginning tree is not described as standing at or by the stream, but on the side of a hill; the surveyor, therefore, at the time of taking up the land, musthave known that the survey could not be closed by pursuing the meanders of the stream, which did not run to the tree called for, but that it would be necessary to shape an arbitrary course from the stream, in order to get to the tree, which would be entirely inconsistent with a direct line from point to point; and assist in showing that the words, “with the main falls,” were not intended to be used as binding ex153 prcssions, but are qualified and controlled by the words next following, “by a direct line.” We think therefore, that “ The Valley of Owen ” must be located by running the given or home line, directly from the termination of the third line to the beginning tree, wherever they may be found to be; and not being so located by the plaintiff on the plots returned in the cause, but by running it with the meanders of the main falls of Palapsco, and by an arbitrary line drawn from that stream to the beginning tree, in order to close the survey, and without which, it could not he done, that the patent was not evidence to support his location so made. JUDGMENT AEEIJR.MED AND PROCEDENDO AWARDED, Under the act of 1830, ch. 186.