#### Den on demise of James Orbison *v.*George Morrison.

j I From Iredell. J

’Questions of boundary, like all other questions of fact, depend on, their own particular circumstances, where every shade of evidence, and *every*the most minute circumstance produces its effect. The artificial rules respecting boundary are intended only as guides in the application of circumstances, and not as fixed laws, to be applied indiscriminately to all cases. The injustice complained of in our boundary decisions, has been produced by considering these artificial rules, not as mere guides, but as fixed laws, and applying them indiscriminately 'to all cases, whether they fit them or not.

It is the province of the Court to expound to the Jury the law connected with the facts under discussion, but not to express an opinion on the facts. If, therefore, the Court express an opinion on the facts, a new-trial will be awarded.

The. grant, under which the lessor of the Plaintiff claimed the lands, was issued in 1779, and described them as adjoining the lands of Nesbit, King and M’Korkle. The beginning corner was a post oak on Nesbit’s line; thence along his line 198 poles to his corner, a pine; thence south 250 polos to a post oak; thence east to a white oak; thence north, &c. Á south course from the pine corner runs directly *across*Nesbit’s tract of land, a distance of 180 poles, and extends thence 80 poles to King and M’Korkle’s line.

Nesbil’s line from the pine corner runs south 30° east 190 poles to a hickory; and if this course be continued to King and M’Korkle’s line, it will pass to the east of the field of which the Defendant has possession. The Defendant contended that the lessor of the Plaintiff was bound to pursue this course, and that the law would not permit him to run across Ncsbit’s land, and extend his line beyond it, nor to turn from Ncsbit’s corner hickory, west along Nesbit’s line, to a point where a line drawn from Nesbil’s corner pine would cross it, and thence south to King and M’Korkle’s line; and if the iaw be. in his favor on this point, he was not guilty of the trespass and ejectment charged in the declaration. The Court adjudged this point against the Defendant.

*552The Defendant then alleged that he had been seven years and more in the actual possession of the lands, claiming1 them adversely and under color of *title;*and he offered in evidence two grants from the State, one bearing date in 1801, which covered part of the lands claimed by the lessor of the Plaintiff, and another bearing date in. 1809, for other parts of said lands adjoining those covered by the grant of 1801. The following diagram shews the boundaries called for in all the grants mentioned in the case, and also shews Nesbit’s lines and King and M’Kor-kle’s line:

*553A. 13. C. D. are the boundaries of Nesbit’s tract.

G. F. is King and M’Korkle’s line.

A. B. E, F. P. S. T. Y. are the boundaries called for in the grant to Orbison.

I). C. H. G. F. E. are the boundaries called for in the grant tg M’Koy, issued in 1801.

B. C. H. F. N. are the boundaries called for in the grant to M’Koy, issued in 1809.

B. I. is the line which runs *across*Nesbit’s tract of land.

When the surveys were made for the grants which Defendant offered as colour of title, no lines nor courses were marked ; each grant called either for the corners and lines of old surveys, or for course and distance to stakes. These grants were not registered until after the expiration of seven years and more from the time Defendant took possession, nor until within a year or two before the trial of this *suit;*nor was it known until about the time said grants were registered, that they were in existence.

The Defendant, about ten years ago, erected a house near to the south line of the two tracts covered by the said grants, the same being also the line of King and M’Kor-kle. The Defendant took possession of the house, and lias lived in it ever since, as tenant to M’Koy, the grantee. He cleared a field containing about fourteen acres, part on ■the tract covered by the grant of 1809, and part on that covered by the grant of 1801.

Five years before the institution of this suit, the lessor of the Plaintiff, who had been living on the northern part of the tract covered by his grant, for twenty years and more, employed a processioner, and with the processioner, entered upon the lands in dispute, claiming them as his own, and had the boundaries of his tract processioned, as the act of Assembly directs. The Defendant and his lessor, M’Koy, were with him during great part of this survey, and during the survey of that part of King and M’Korkle’s line, which Morrison’s field adjoins.

The Defendant entered into the compion rule, and defended as to all the lands covered by the grants of 1801 *554and 1809, and which were covered by the grant to the lessor of the Plaintiff; and insisted that his possession, for more than seven years, under the colour of tifie *\\*hich he ¡la(| 0g-em] jn evidence, iiad barred the right of entry of the lessor of the Plaintiff, not only as to the lands included within his, the Defendant’s, fence, but as to all the lands in dispute.

The Court charged the Jury, that the possession which is to bar the right of entry, must be an actual possession of at least part of the lands covered by the colour of title under which the possession is held; that this possession mast be accompanied v, itb a claim, notorious in the neigh-bourhood, to the boundaries called for in the colour of title : that the law required colour of title to accompany the possession, in order to shew the extent of the possessor’s claim *i*and that it was .necessary not only that the possessor1 should make known his colour of title for the space of seven years, but should also make known during the same time, the boundaries therein called for : this lie might do, either by shewing his deed or grant to his neigh-bours, and pointing out his lines, or by registering his deed or-grant, and giving notice that lie held under it. Thai in this cane, the. Defendant had done neither: his possession was known to the neighbourhood, it was *true;*but he had given no notice that he claimed tire possession under colour of title, nor had he made known the boundaries to which he claimed, and to which he wished iris colour of title to avail him : that, therefore, his possession had not barred the right of entry of the lessor of the Plaintiff, even as to the lands included within his fence.

The Court also charged, that the entry upon the lands and survey of the boundaries made by the lessor of the Plaintiff five years before, had defeated the Defendant’s possession, so that no bar had been created.

The Jury gave a verdict for the Plaintiff. . A rule for a new trial was obtained, and it being discharged, the Defendant appealed.

*555Hen bee so a. Judge,

delivered the opinion of the Court: It is the province of the Court to expound to the Jury the law connected with the facts under discussion, but not to express an opinion on the facts, much less to decide them. The boundaries of deeds and grants are questions of fací, or at least, of law and fact combined, and belong exclusively to the Jury. It was an error therefore in the Judge to undertake to decide that the second line of the lessor of the Plaintiff’s patent run from B. to I: and if it was a conclusion of law drawn from the facts, it does not appear that even those subordinate facts were either admitted or found by the Jury. Besides, were we here to act the part of the Judge below, we have not the evidence which the. case no doubt affords. It is not shewn whether there are marked trees from B. to I, and if there be, at what time and on what account made ; whether they correspond with the date of Orbison’s deed, whether there is a post oak marked as a corner at I. its date, &c. whether there are marked trees between L and H. whether there are marked trees on the- dotted line from C. to where it intersects M’Korkle’s line, whether there is a post oak marked at its intersection, and whether Nesbit’s line B. C. was openly and notoriously known in the neighborhood, when Orbison obtained his grant, or if it had only that notoriety which ordinary wood lines have. All these are facts bearing on the question, “ how does Orbison’s second line run ?” which we have no means of knowing, and which the Judge, below, and of course wo, have no right to pass on. It is by an adherence to tlie.se artificial rules found in our books, and considering them as fixed laws, and applying them indiscriminately.to all cases, whether they fit them or not, that such monstrous injustice has been done in our boundary decisions ; at many times embracing several thousand acres, when only a few hundred were contemplated by the parties. The fact is, that questions of boundary, like all other questions of fact, depend each on their own particular circumstances, where every shade *556of evidence, and every the most minute circumstance, pro-^uces ^cs effect 5 and we might almost as well attempt to lay down rules of presumption to guide the conscience of a Jury, as rules by which boundary shall be ascertained. The sole question is, where do the lines called for in the deed or patent, actually run ? I am far from saying that I, as a Juror, would have decided even from the evidence appearing upon the case that is sent here, differently from what the Judge *did;*but I think he had no right to decide at all — The rule for a new trial must be made absolute.