McClintock v. Rogers

Opinion by Mr. Justice Catón : Where, as in a patent from the United States, the land is only described in the conveyance by numbers and quarters, we have to look at the plats and field notes of the public surveys, in order to locate the land. These are to be considered as if incorporated into the patent itself. In order to understand these, we must observe the system under which the surveys were made. By this system, the public lands are first surveyed into townships, six miles square, the lines of which are required to correspond with the cardinal points. At the corners of the townships, appropriate monuments are required to be erected 3 between which, all along these lines, other monuments are erected, at intervals of one mile. These townships are subsequently divided into thirty-six sections, by running parallel lines each way, from those intermediate monuments on one side of the township to the corresponding ones on the side opposite. At the corners of the sections, where these lines cross each other, and equidistant between those corners, monuments are also erected. This divides the township into sections, and those sections into quarter sections. Only the external lines, however, of the sections are actually run upon the ground by the original surveyor. The lines thus actually run by the surveyor become the true external boundaries of the sections, and, of course, of their subdivisions. Where the boundaries of the subdivisions have not been actually run, they must be ascertained by running true lines from one established point to another. The original monuments, when ascertained, afford the most satisfactory, and we may say, conclusive evidence of the lines originally run, which are the true boundaries of the tract surveyed, whether they correspond with the plat and field notes of the survey or not. All agree that courses, distances and quantities must always yield to the monuments and marks erected or adopted by the original surveyor, as indicating the lines run by him. These monuments are facts ; the field notes and plats, indicating courses, distances and quantities, are but descriptions, which serve to assist in ascertaining those facts. Established monuments and marked trees, not only serve to show with certainty the lines of their own tracts, but they are also to be resorted to, in connection with the field notes and other evidence, to fix the original location of a monument or line which has been lost or obliterated by time, accident or design. As in this case, the only monument which was required to be erected in the original survey, bordering upon the premises in question, was upon the township line at the north-east corner of section six. This original monument could not be found, and its true position is the only inquiry. The principal controversy seems to be, as to its true position north and south, which must be upon the township line running east and west. The original monuments at each extreme of this line—that is, the one five miles east and the other one mile west of the corner sought to be established, are identified, but, unfortunately, none of' the original monuments and marks, showing the actual line which was run between townships five and six, can be found; and hence we must recur to these two, as well as other original monuments, which are established in connection with the field notes and plats, to ascertain where those monuments were : for where they were, there the line was. If the two known monuments, at the two extremes of the township line, were the only ones required to have been erected, and the line was necessarily a direct one between the two, then those monuments would have to govern, no matter how variant the line which they indicate might be from the field notes. But that the line was not necessarily straight, and, indeed, we know it could not have been, from the known imperfection of the means employed to run it. It must have varied more or less at each monument or mark indicating it. It is this necessarily-varied line we seek. When the location of a lost corner is sought, by approaching it from others which are established, we must be guided by the best lights at command, however imperfect and unsatisfactory they may be. These, in the present instance, are principally the field notes. The law cannot satisfactorily determine, in all cases, whether the courses or distances shall govern, when they do not correspond, but that must be determined by concurring testimonj’’, and the circumstances of each particular case. The one that convinces the judgment the most must be selected. Unless the compass is beyond the influence of disturbing causes, and the surveyor is very careful in adjusting it properly, and in noting minutely the variation at which the line is run—and we know the date of the survey—so that the increase or decrease of the variation since, can be added or deducted, no surveyor can ever feel confident that he is running even very near to the line traversed by his predecessor, and by whose minutes he is working. In this case, Mr. Richards, who was appointed by an order of the Court, and by the agreement of the parties, to make the survey, first run a direct line from A to B, as indicated on the plat (X,) which he returned with his report, marked (R,) and which represent the known monuments at the two extremities of the township line. The result was by no means satisfactory. This line he run at a variation of 5° 48'. The field notes and plat from the Surveyor General’s office, marked (Y,) do not show at what variation the original line was run. We learn, however, from the courses marked on the plat returned by the surveyor, so far as that speaks on the subject, that the other township lines, which were originally run at the same time that this was, were run at a variation of 8° 24', while the variations of the sectional lines range from 8Q 24' to 7° 42', the latter being the least found upon the plat, except the line in controversy. This disparity is sufficient to show that some gross mistake had been originally made in the course of the line. The distance, also, was found to exceed the length given in the field notes 7.59 chains. But little that was satisfactory could be gathered from the survey thus far. It must be remembered that the monuments found at the two extremes of the line, were entitled to no more controlling influence, in determining the actual location of the intermediate line, than any two intermediate monuments, had they been found, and these had been missing. D and G would have served as well to find A and B, had they been lost, as the latter would to find the former. The last corner must then be approached from other known points. The surveyor then went two miles north of the point which he was seeking to establish, at C, where he found the old corner, and run down on the east lines of sections thirty and thirty-one, verifying the accuracy of the field notes, by two original monuments which he found in his course, and fixed upon D as the position indicated for the south-east corner of section thirty-one. He then went one mile south, to E, the established southeast corner of section six, and run north upon the east line of that section, by the field notes, and struck but seventeen links south of the point previously fixed upon at D, as the supposed location of the original corner, making an offset on the same side, and variant but seven links from the field notes. Here, indeed, is a remarkable concurrence of testimony, which could hardly be accidental, and there is nothing to throw a doubt upon the accuracy of the location thus indicated, except that it is not upon a direct line between the corners of the townships at A and B, and this, as we have before seen, is entitled to but little weight. But Mr. Richards did not stop here. With the view of still further testing the accuracy of the place selected at D, he proceeded by the same process to establish the northeast corner of section five, and in doing this he had the additional advantage of the original quarter section corners, as well as section corners, on the east lines of sections five and thirty-two, except the one on the township line, which he was then seeking to locate. The result of this work was equally satisfactory, and by it the lost corner at G was also established, south of a direct line between A and B, and very nearly on a direct line between A and D. There is too much method in all this for mere accident. According to the field notes of the original survey, the east line of section thirty-one, is just eighty chains, and by placing the disputed corner on the direct line, it would fall short 8.10 chains, while the east line of section six would exceed the length given it by the field notes, the same distance that the other falls short, within seventeen links. We might be obliged to admit even so gross a mistake as this, if it occurred only in one of the lines, but it would be a most remarkable circumstance, indeed, if a corresponding mistake had been made at another time in measuring another line, directly opposite and adjoining to it, by which the same amount was added to the latter which was lost in the former. We say at different times, for the two sections being in different townships, they could not have been surveyed at the same time. But this is not all'. Precisely the same thing occurs in the measurement of the two lines next east of these. Here is a remarkable coincidence of errors, if they be accidental. Suppose one man had lost a purse in a particular locality, containing a particular number of dollars and cents, and another had found a purse, near the same place, containing the same number of dollars and cents, that man would be skeptical, indeed, who would doubt, without the most conclusive evidence to the contrary, that the lost purse was found, although the identity of the one lost, or of the particular pieces of coin, were not positively proved. But suppose further, that the lost purse also contained a certain number of eagles and half eagles, and that the one found contained a corresponding number of each, belief would almost become certainty, and yet the circumstances of the case before us are as much calculated to produce conviction as those supposed. Quantity, although the least reliable, and the last to be resorted to, of all the descriptions in a deed, in determining the boundaries of the premises conveyed, may some times be considered, in corroboration of other proof. In this case it may not be entirely overlooked. According to the plat of the original survey, the quarter quarter sections of which the lost monument was the corner, should contain forty acres each, which they got by placing the corner at D 5 whereas by moving it up into the direct line between A and B, the north-east quarter of the north-east'quarter of section six would contain fifty-five acres, and the south-east quarter of the south-east quarter of section thirty-one would contain but twenty-five acres, thus making the south lot more than twice as large as the one north of it, when they should be of equal size. This great disparity in quantity is sufficient, at least, to excite a strong suspicion that the original corner was not placed in a direct line between the two extremes of the township line. We think that all these corroborating circumstances are entitled to more weight than the bare possibility, or even probabili-. ty, that a surveyor in a wild and uninhabited counüy, with no one to immediately superintend his work, did run a line six miles long, perfectly straight, as his instructions required that he should. The finding of the Court below, thus supported by evidence, should not be disturbed. The judgment of the Circuit Court is affirmed, with costs. Judgment affirmed.