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MCIVER'S LESSEE V. WALKER, 13 U. S. 173 (1815)
U.S. Supreme Court
McIver's Lessee v. Walker, 13 U.S. 9 Cranch 173 173 (1815)
McIver's Lessee v. Walker
13 U.S. (9 Cranch) 173
ERROR TO THE CIRCUIT COURT FOR
THE DISTRICT OF EAST TENNESSEE
If there is nothing in a patent to control the call for course and distance, the land must be bounded by the course and distances of the patent according to the magnetic meridian.
Course and distance must yield to a call for natural objects.
All lands are supposed to have been actually surveyed, and the intention of the grant is to convey the land according to the actual survey.
If a patent refers to a plat annexed and if in that plat a watercourse be laid down as running through the land, the tract must be so surveyed as to include the watercourse and to conform as near as may be to the plat, although the lines thus run do not correspond with the courses and distances mentioned in the patent and although neither the certificate of survey nor the patent calls for that watercourse.
Quaere whether parol evidence can be given that the surveyor intended to express the courses according to the true, and not according to the magnetic, meridian.
The case is thus stated by THE CHIEF JUSTICE in delivering the opinion of the Court.
On the trial, the plaintiff produced two patents for 5,000 acres each from the State of North Carolina granting to Stockley Donalson, from whom the plaintiff derived his title, two several tracts of land lying on Crow Creek, the one, No. 12, beginning at a box elder standing on a ridge corner to No. 11, &c., "as by the plat hereunto annexed will appear." The plat and certificate of survey were annexed to the grant.
The plaintiff proved that there were eleven other grants of the same date for 5,000 acres each, issued from the State of North Carolina, designated as a chain of surveys joining each other from No. 1 to No. 11, inclusive, each calling for land on Crow Creek, as a general call, and the courses and distances of which, as described in the grants, are the same with the grants produced to the jury. It was also proved that the beginning of the first grant was marked and intended as the beginning corner of No. 1, but no other tree was marked, nor was any survey ever made, but the plat was made out at Raleigh, and does not express on its face that the lines were run by the true meridian. It was also proved that the beginning corner of No. 1, stood on the northwest side of Crow Creek, and the line, running thence down the creek, and called for in the plat and patent, is south 40 degrees west. It further appeared that Crow Creek runs through a valley of good land, which is on an average about three miles wide, between mountains unfit for cultivation, and which extends from the beginning of the survey No. 1, in the said chain of surveys, until it reaches below survey No. 13, in nearly a straight line, the course of which is nearly south thirty-five degrees
west by the needle, and south forty degrees west by the true meridian. That in the face of the plats annexed to the grants, the creek is represented as running through and across each grant. The lines in the certificate of survey do not expressly call for crossing the creek, but each certificate and grant calls generally for land lying on Crow Creek. If the lines of the tracts hereinbefore mentioned No. 12 and 13, in the said chain of surveys, be run according to the course of the needle and the distances called for, they will not include Crow Creek or any part of it, and will not include the land in possession of the defendants. If they be run according to the true meridian or so as to include Crow Creek, they will include the lands in possession of the defendants. Whereupon the counsel for the plaintiff moved the court to instruct the jury:
1. That the lines of the said lands ought to be run according to the true meridian, and not according to the needle.
2. That the lines ought to be run so as to include Crow Creek and the lands in possession of the defendants.
The court overruled both these motions and instructed the jury that the said grant must be run according to the course of the needle and the distances called for in the said grants, and that the same could not be legally run so as to include Crow Creek, and that the said grants did not include the lands in possession of the defendants. To this opinion an exception was taken by the plaintiffs counsel. A verdict and judgment were rendered for the defendants, and that judgment is now before this Court on a writ of error.
THE CHIEF JUSTICE, in stating the case, omitted the fact that testimony was offered by the plaintiff at the trial to prove
"that the surveyor who made the plats and certificates of survey annexed to the grants, had regard to the true meridian, and not to the course of the needle, in making the said certificates of survey, and intended the courses of the surveys so to be run,"
which testimony was rejected by the court below as inadmissible -- but the court admitted evidence "that
the general practice of making surveys by surveyors has been to run to the courses of the needle."
MR. CHIEF JUSTICE MARSHALL, after stating the facts of the case, delivered the opinion of the Court as follows:
It is undoubtedly the practice of surveyors, and the practice was proved in this cause, to express in their plats and certificates of survey the courses which are designated by the needle, and if nothing exists to control the call for course and distance, the land must be
bounded by the courses and distances of the patent according to the magnetic meridian. But it is a general principle that the course and distance must yield to natural objects called for in the patent. All lands are supposed to be actually surveyed, and the intention of the grant is to convey the land according to that actual survey; consequently, if marked trees and marked corners be found conformably to the calls of the patent, or if watercourses be called for in the patent, or mountains or any other natural objects, distances must be lengthened or shortened and courses varied so as to conform to those objects.
The reason of the rule is that it is the intention of the grant to convey the land actually surveyed, and mistakes in courses or distances are more probable and more frequent than in marked trees, mountains, rivers, or other natural objects capable of being clearly designated and accurately described. Had the survey in this case been actually made and the lines had called to cross Crow Creek, the courses and distances might have been precisely what they are, it might have been impracticable to find corner or other marked trees, and yet the land must have been so surveyed as to include Crow Creek. The call, in the lines of the patent, to cross Crow Creek would be one to which course and distance must necessarily yield. This material call is omitted, and from its omission arises the great difficulty of the cause.
That the lands should not be described as lying on both sides of Crow Creek nor the lines call for crossing that creek are such extraordinary omissions as to create considerable doubt with the Court in deciding whether there is any other description given in the patent of sufficient strength to control the call for course and distance.
The majority of the Court is of opinion that there is such a description. The patent closes its description of the land granted by a reference to the plat which is annexed.
The laws of the state require this annexation. In
this plat, thus annexed to the patent and thus referred to as describing the land granted, Crow Creek is laid down as passing through the tract. Every person having knowledge of the grant would also have knowledge of the plat, and would by that plat be instructed that the lands lay on both sides of the creek. There would be nothing to lead to a different conclusion but a difference of about five degrees in the course, should he run out the whole chain of surveys in order to find the beginning of No. 12, and he would know that such an error in the course would be corrected by such a great natural object as a creek laid down by the surveyor in the middle of his plat. This would prove, notwithstanding the error in the course, that the lands on both sides of Crow Creek were intended to be included in the survey and intended to be granted by the patent.
It is the opinion of the majority of this Court that there is error in the opinion of the Circuit Court for the District of East Tennessee in this, that the said court instructed the jury that the grant under which the plaintiff claimed could not be legally run so as to include Crow Creek, instead of directing the jury that the said grant must be so run as to include Crow Creek and to conform as near as may be to the plat annexed to the said grant, wherefore it is considered by this Court that the said judgment be
Reversed and annulled and the cause be remanded to the said circuit court that a new trial may be had according to law.
THE CHIEF JUSTICE added that he did not think the question about the true meridian had much to do with the case. The court decided it upon the plat. If it had not been for the plat, it should have said that the land ought to be surveyed by the magnetic meridian.
My opinion is that there is no safe rule but to follow the needle.
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