#### M‘IVER’S Lessee *v.*WALKER and another.

•#6senf....LiviNGs’T0N, *J.*Story, J. <$• Tódd, J.

ERROR to the Circuit Court for . the district of East Tennessee, in an action of ejectment brought by the Plaintiff in error against the. Defendants.

jf there is nothingin apa-^ ' tent to control the call for course and dis« tance, the land. must be hounded by the courses and dis¡Sent, according to the maj;“en"

Course anfidisfor natural obJects-

suppiSto^ have been acecT^nd^telT teñtíon of the grant is to com ¿fQr¡iing the actualsur-

re„ fei- to a plat, ¡nfn^xtfft ,na ¿¿"ter course i30TM tiirmigu”1 tte -fluid, the tract, elude the wa-' near as may be <*> the piat,ai¡Ui^Uius’mu do net corres"’ÍÍ1 a!e tances men-ti°"eea thpughneithi *174the certificate £¿esu'patentTM calis f»r that ther imioi íveí that the Srveyor4 in-° tended tó ex-coursesaccord»ng to the true, :md not accord-pt¡c° med-a ,'diau.

*173The case is1 thus stated by the chief justice in delivering the opinion of the Court. .

« On the trial the Plaintiff produced two patents for 5000 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 standing on a ridge corner to No. 11, &c.“ *as ly the “ plat hermnto annexed will*appear.” Tfie plat and certificate of survey were annexed to the grant. .

The Plaintiff proved that there were eleven other grants of the same date for 5000 ácres raah. issued from the state of North Carolina, designated as a chain of purveys joining each other from No. 1 to No. 11, inrjusive, each calling for land on Crow Creek, as a general call, and the courses aud distances of which, as described in the grants, are the same with life grants produced to the jury. • It was a,Iso proved that the beginning of the first.grant was marked and intended as .the beginning porner of No. 1, but no other tree was marked, no.r any survey ever made, but the plat was made out at Raleigh, and does not express on its face that the litres were run by the true meridian. It was also proved that the beginning corner of No. 1, stood on the north west side of Crow Creek, and the line, running thence down the creek, and oalledffor 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 ning of the survey No. 1, in the said chain ox surveys, .uiitil it reaches below survey No. 13, in nearly a straight line, the coursp of which is nearly south thirty-five de*174grees west by the needle, and south forty degrees west by the true meridian. -That in the face of the plats aunexed 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 ; each ceMilicate and grant calls gfner.dly for (and lying on Crow Creek. If the lines of the tracts herein before 'mentioned Mo. 12 and 13, in the said chain of surveys, be run according to the course ot‘ the needle and distances cálk-d for, they will not include Crow or any part of it, and will not include the land *n P!,ssess‘on °f’ the Defendants. If they be run arrordbig to the true meridian, or so as to include Crow Creek, they will include tlie lands in possession of the DefenWhereupon 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 legal.ly 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 judginent is. now before this Court on a writ of error.”-

The chief justice in stating the rase, omitted the fact that testimony ¡ivas offered by the Plaintiff at the trial to prove1 “ that, the surveyor who, made the piats and certificateS of survey annexed to the grants, had regard « to the true meridian, and not to the course of the nee- « die, in making the said certificates of survey, and in-' *“*tended 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 *175« the *general practice*of making surveys by surveyors •« lias béen to run to the courses of the needic.”

Swann,, *for the. Plaintiff in error.*

I The Court below ought not to have rejected the testimony to prove the intention of the. surveyor to rtin the lines.of these grants by the true meridian. It corroborates the. p^t annexed to the grant. The rule of construction* as to grants from tue state, especially in Virginia, N. Caroljna and Tennessee, differs from the rule as to other deeds. Course and distance may be cortroled by parol evidence, of the actual manner in which . the survey mas made, and of the actual marks and bounds made upon the land at the time of the survey.. The Courts have not stopped at a natur J object called for, . li.parol evidence be' given that according to the actual purvey the line extended bey ond that object. The marks Control the course and distance of the .patent. 1 *Hen. and Man.*77, *Baker v. Glasscock. Taylor’s*«/V*. *Carolina Hep.*116, *Hayward’s Rep.*238, *378*— MS. *Rep. Blount’s lessee v.. Masters.*3 *Call.*239, *Herbert v. Wise. .*

If the witness had testified that a > survey liad ueert actually made and that it included the creek, it would have been admissible testimony. But the plat was intended tb be. a substitute for án actual survey. . It was a part of the-patent, annexed to it and referred to. by it. It was as much a part of the patent as,if it had been insertedin it. It shows that, the land ought to be laid iff so as to include the creek, as plainly as if the patent had expressed it m words. The cafarse, south *0 degrees west, is ambiguous — it may mean a magnetic or a meridional course. The question is what'was the. intention of the surveyor? How shall it be ascertained? The most direct mode of ascertaing it is to prove'his declarations *r.*t the timé. It. is true that by proving what was the general practice of surveyors you may *infer*his intention — but that, is a secondary mode ,of proof, and less Certain than proof of his declarations at the.time he made. the particular survey in question... This is not-bringing parol evidence to contradict or to control the plat, but to corroborate and Gonfirm it.

if a grant is capable of two co. structions, the-Court *176must adopt that which is most beneficial to the grantee. 1 *Taylor’s JRcp.*163.

Jones, contra.

general practice of the country is to survey by the compass, and ail the courses expressed in surveys refer to the magnetic meridian, A certificate of survey therefore is always supposed to express magnetic courses unless the contrary is expressed on its face. No parol proof can be admitted to contradict what is so strongly implied. It would be a dangerous practice — it would, be a difficult thing foi* a common surveyor to ascertain the true meridian, and there is no 1. w of North Carolina which compels him to do it The testimony offered was not to prove any act of the surveyor, but his intentions.

There is no natural boundary called for in the pa- . tent, The general expression that the land is on Crow-Creek, cannot control the course and distance. The Expression in the patent« as by the plat hereunto annexed will appeal;»” refers only to the courses and distances, and not to the actual location of the land. The figure of a creek delineated on the plat, without any reference to it in the certificate of survey, carinot control the boundaries actually described. Not a word is said about the lines including or crossing Crow Creek: and in order to include the creek you must deviate from the straight line called for.

C, Lee, *in reply.*

The intent of a grant must be effectuated, if by an£ means, consistent with the rules' of law, it can be done. The intent of this grant cannot be1 effectuated by the mode of survey directed by the Court below. The plat, annexed to thotgrant, shows the intent to be to make the survey conform to the nature of the gro'iihd so as to include the creek and the valley, and exclude the mountains. The law of North Carolina, requires the1 plat tobé annexed to the deed, which is thereby, and by the reference to it in the body of the deed, made a part thereof; and contains a plain declaration that the gran-t tee shall have the valley through which the creek-runs.

*177On what ground could the testimony of the intention of the surveyor, have been rejected by the Court, when they admitted testimony to show the general practice to be to survey by the magnetic meridian? That general practice was only a factfrom which the, jury might infer, in the absence of positive testimony, what the intent of the surveyor was. It was agrade of evidence inferior to positive testimony of the intention. It was only *prima facie,*not conclusive evidence of his meaning. There was no law of North Carolina which required the surveyor to go by the magnetic, and. not by the true meridian. He was at full liberty to adopt the true meridian if he pleased. We say he did so, and the plat itself isevidence of the fact *‘,*for it could not otherwise, be consistent With itself. You must run the lines according to the true meridian to include the creek.

Marshall, *Ch. J.*

Hoes not a. difficulty arise in consequence of the grant having been made without actual survey ?

C. Lee. , That is a matter between the state and the grantee. After a grant, no stranger can take advantage of such a defect. The state may wave the objec- . tion if it chuses to do so.

Swann. It has been settled, I believe in North Cáro lina that whfen a grant has actually been made, iv> enquiry shall be made by the state as to the survey, &c.

In *Hayward’s Rep.*358 the judge says, *“*when a « grant has issued we can look no further *back;*all « previous proceedings must be considered as regular.”

*March 1st.*

Absent....Todd, J?

Marshall, *Ch. J.*

after stating the facts of the case, delivered the opinion of the Court as follows s

« 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 j and if nothing exists to control the call for course and distance, the land must be *178bounded by the courses and distances of the patent, ae cording to the magnetic meridian. Rut it is a general principle that the course and distance must yield to narural objects galled' 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 tiiat actual survey ; 'consequently if marked trees and marked cotv ners he found conformably to the calls of the patent, or if water-courses 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 reaspn 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 cal!, is ■ombted, and from its omission arises the great difficulty óf 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 torréate considerable doubt with the Court in decidingwhether there is any. other description given, in the patent, of sufficient strength to control the call for course and distance. 5

’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 *179this 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 he 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 pn both sides of Crow Creek w ere 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 tlu re is error in the opinion of the Circuit Court for the district of East Tennessee in this, that t! e.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 reve-,-sed and annulled and the cause be remanded to the said Circuit Court that a new trial may be bad 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, they should have said that' the land ought to be surveyed by the magnetic meridian,

Duvaxx, *J.*

My opinion is that there is no safe rule but to follow the needlé.