Clarke v. Wagner

PeaKSON, C. J. Tlio statement of the case does not set out with distinctness the locus in quo, but we learn, from it and the plat and the statement of counsel at the bar, that it composes a slip of dry land lying between a direct line from [799] the lower end of Island No. 2 to the post oak corner, and a line of marked trees from that corner to a white oak oil the bank of the river, marked as a “ fore and aft';” and also a parcel of land covered by water. In regard to the dry land, there was evidence of a long continued possession by those under whom defendant derives title, claiming np to the white oak and marked line to the post oak. There was conflicting evidence as to how long this possession had been abandoned, to which his Honor seems not to have called the attention of the jury; but supposing, as to this part of the locus in quo, there was evidence to be left to to the jury ; in regard to tlio parcel covered by water, there was no evidence whatever of any possession or of any definite line up to which claim was made. It may have been from the wdiite oak down the river bank, which ivas the extent of the possession, or from the white oak to the lower end of Island No. 2 ; or to the island, by an extension of a line from the post oak to the white oak, or from the white oak to the lower end of Island No. 1, which the case states was the point claimed by the defendant. Ilis Honor erred in allowing the jury to find for the defendant in respect to this part of the locus in quo. There will be a venire de novo. As the case goes back, it may be well observe that his Honor is very indefinite on the question of boundary, which is the main purpose of the action, and for this the plaintiff has a right to complain, as well as for error above referred to. The object is to locate the Houston grant — it begins at a stake at the upper end of the island, thence, &c., to a stake at the lower end of the island, thence, “ including two small islands.” The difficulty arises out of the fact, that the grant does not designate which of the two islands is meant by the words, a stake at the upper end, and a stake at the lower end of “ the island.” This is the governing fact in tlio case, and ought to have been distinctly left to the jury, with instructions to consider all of the evidence and the surroundings of the case, [800] including the marked line trees and corners, and the plot annexed to the grant, tlie tradition of old persons, the land and the nature of the river; were the islands permanent or liable to change by washing away atone place and gaining at another, and other like matters. His Honor was at liberty, by way of • illustration and to aid the jury, to say the grant includes two islands. If you adopt No. 1, how can you include both islands? On the other hand, there are certain marked line trees that cannot be reconciled with a corner at the lower end of No. 2. How can you adopt No. 2 ? and lie ought then to have added: Can a solution of this difficulty be found in the supposition that since 1790, the upper part of No. 2 has washed off and there has been an accretion at the lower end ? If the jury find that No. 1 is the island meant, the verdict should bo in favor of the defendant. If the jury find that No. 2 is the island meant, then the court instructs them: The beginning corner of the grant is at a point which was the upper end of the island at the date of the survey, 1790, and the second corner is at a point which was the lower end of the island at that date, and the line must be run from the second corner, wherever the jury may fix it, directly to the post oak, an agreed corner. Per Curiam. Venire de novo.