Hickman v. Hudson

Mathews, J., delivered the opinion of the court. This is an action to ascertain and fix the limits of contiguous tracts of land, on which the plaintiff complains of an interference with the tract he claims, by an unauthorized line or limit between him and the defendants, John and [522] Jesse Hudson. The iudgement of the court below was favorable to the pretensions of the latter, from which the former appealed. The case involves questions relating to several tracts of land situated on the northeastern side of Red river, near to a place called the Regolets du bon Dieu. It appears by the evidence and titles produced, that á certain and well ascer. tained point was established, from which the upper line or limits of the tract granted to one Monet, is to commence; and on this limit, depends the course, which all the others embraced by this suit, must take. The defendants, however, rely on limits agreed on, and fixed by the consent of the owners of the property in dispute, who held previous to the present claimants. The testimony adduced in support of this agreement, does not, in our opinion, establish the fact of its existence. In testing the correctness of the judgement of the District Court, we must, therefore, resort to the facts resulting from the whole evidence of the cause. Of these facts, the most important, indeed, that on which the decision turns, is the fact disclosed by the grant and survey of the tract conceded to Monet. This land was surveyed in 1794, according to a certificate of Don Carlos Trudeau,-of that date. The survey was of ten arpens front on each side of Red River, with parallel limits running north forty degrees east on one side of the river, and south forty degrees west on the other side, without attending to the variation of the compass; which was eight degrees to the east of north, as ascertained for the purpose of showing the north forty degrees east of the globe. This, we believe to be a correct translation of this part of the surveyor’s certificate, which was made in the Spanish language, and is in the words following: ‘■‘■Los limites parahilas dirigredos norte quarenta grados este: Y al sur quarenta grados miste de uno y otro lado del Rio, sin attendero a la variación de la Busola variando estu de ocho grados al JVbrte-Este. Aquillos ocho grados feur in corrigidos a fin de señalar el norte quarenta grados este del globo.” „In an a«tlon oi boundary, when the true eral^dividtag true course of a base line, which calls to run “north forty degrees east, without attending to the variation of the compass, which was eight degrees to the east of north, as ascertained forthe purpose of showing the north forty degrees east of the true meridian on the globe;” such line will be taken, and construed to run “north fortydegrees east, as shown by the needle,” without attention to or allowing first variation. This instrument could not admit of the least doubt as to its meaning, and consequently, no room would be left for interpretation had it stopped at the end of the first clause, “sin atíender ala varacion de la Busola.” Although the subsequent clause may have a tendency to create some obscurity and ' J raise a faint doubt as to the course which the lines of the survey should pursue, yet we are of opinion that it ought not to be allowed to control the clear and positive designation of them as given by the first clause. According to this they are to run north forty degrees east, as shown by the needle without attention to its variation. It may be true that this interpretation will leave the latter clause without any important effect on the pretensions of the parties to the present action, or in relation to any disputes which might arise respecting the land, as surveyed. But a designation of the true meridian thus made at the time of the survey, would perhaps not be wholly useless as ascertaining the lines in future times, although run on the magnetic course as was done according to the certificate of the surveyor. Be this, however, as it may, we are of opinion that these last expressions in the certificate of survey cannot by any just interpretation destroy the position and express direction given to the lines of this tract of land, without regard to the variation of the compass. We think the court below erred in its construction of the survey of land granted to Monet; and as all the limits now in dispute depend on the upper line of this tract, that error has caused an erroneous judgement in them all. It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be avoided, reversed, and annulled; and proceeding here to give such judgement as in our opinion ought to have been given in the court below, it is further ordered, adjudged, and decreed, that the line A, B, C, marked on the plat made and returned by K. McCrummen, be fixed and established as the upper limit of the tract of land granted to Monet, which line runs north forty degrees [524] east, according to the magnetic meridian. And it is further ordered, that all the contested limits of the other tracts of land referred to in this suit, be made, fixed, and established, in accordance with the course of the upper limit of the Monet tract, and in reference to the quantity of land in front on the river, to which each of the parties to this suit may be entitled. It is further ordered, that these parties be put or maintained in their several rights and possessions in pursuance of this judgement. The defendants and appellees to pay costs in both courts.