#### DEN ex dem. of WILLIAM HURLEY *v.*HARDY MORGAN.

The meaning of a deed as to what land it covers, is a question of law to be decided by the court. *What*are the *termini*of the lines are points of construction; *where they*are, questions of fact.' Therefore, *it was held*to be error for the judge to instruct the jury, that, where there was an irreconcilable ■ difference between a natural boundary and a marked line, it was matter of evidence, and not of construction.

As a general rule, in questions of boundary, a natural object has a preference over marked lines or corners, and will Control them when the natural object is of such a nature as cannot easily be mistaken by the parties, either in name or situation, as in the case of a river or creek. But the reason of this rule does not apply to very small streams, which either have no names, or have formerly had a different name from that which they now bear. With respect to these, it is open .to evidence *which stream*the parties meant by a particular name; and the jury, if satisfied of the fact, from proof of possession or the like, may find a stream to be the one meant, although not the one bearing the name mentioned in the deed.

This was an action of ejectment brought to recover the possession of a tract of land; and upon the trial at Davidson on the last Spring Circuit before his Honor Judge *426MaRtin, the lessor of the plaintiff produced the following evidence of title to the land mentioned in his declaration.

jn j u]y5 1774, a grant issued to Charles Thompson for one hundred acres of land, described as “ beginning at a stake among three small hickory saplings, pointers, standing on the north-east side of Barnes’ Creek, at the mouth of the Rocky Branch, thence N. 10° E. 127 poles to a black oak, then N. 80° W. 127 poles to a pine, then S. 10° W. 127 poles, then S. 80° E. 127 poles to the beginning. The plat annexed to the grant, and signed by James Cotton as surveyor, reversed the east and west lines of the grant, so that by the calls of the grant the land lay on the west side of Barnes’ Creek, but according to the plat it would lie on the east side of that creek, the general course of which is nearly south. The warrant of survey upon which the grant issued bore date in 1772, and directed the survey to be made on the mouth of the Rocky Branch of Barnes’ Creek. Thompson conveyed to James Cotton (the surveyor) in October, 1774, describing the land as it was described in the grant, with the following additional particulars, to wit: “including the plantation and mill whereon I now live.” From Cotton a regular and connected chain of conveyances was shown down to the plaintiff, in each of which deeds the same boundary was called for as that contained in the original grant. The dates of the mesne conveyances from Cotton to the lessor of the plaintiff were 1786, 1789, 1817, and 1826.

It appeared from the evidence that the Rocky Branch entered into Barnes’ Creek about one-fourth of a mile north of the northern line of the land claimed by the plaintiff’s lessor. It appeared also, that Charles Thompson, before his conveyance to Cotton in 1774, had built a mill, erected a dwelling-house, and cleared a plantation on the land now claimed ; and that a continued possession of the plantation had been maintained by the plaintiff’s lessor, and those under whom he claimed, until a short time before the entry and possession of the defendant. The mill had decayed and disappeared many years ago.

It did not appear that a mark was found upon any tree corresponding in age with the date of the survey, or *427the grant, but it was shown that a survey had been made thirty-one or thirty-two years before this suit was brought, the object of which was to'find vacant land; and at that time a white oak, now insisted on as the third corner from the beginning, of the original survey, had then marks as a corner of considerable age upon it. It was also shown *that*the white oak had been since killed by fire; that a red oak was found marked as a corner at the place claimed by the plaintiff’s lessor as the first corner from the beginning. At the second corner from the beginning there was a post-oak which either had been before, or was then marked as a corner, when one of the conveyances, under which the lessor of the plaintiff claimed, to wit, that of 1817, was made, as it appeared that the land now claimed was run for the purpose of making that deed. After offering some other evidence tending to establish one of the corners, the plaintiff’s lessor produced two grants for lands adjoining that now claimed, and calling for the lines of the tract as claimed by him; one issued in the year 1791, and calling for the third and fourth lines; the other in 1801, calling for, and proved to have been run according to, one of the lines now contended for. A grant was also shown, of a tract of land, to James Cotton (the surveyor of the land granted to Thompson), which was issued upon a survey made by Cotton himself in 1772, about six months after his survey for Thompson; and according to the calls of that grant, nearly the whole of the land granted to Thompson would be included in it, if the beginning of Thompson’s tract were at the mouth of the Rocky Branch.

If the mouth of the Rocky Branch be the beginning of the grant to Thompson, the land in dispute was not within the boundaries of it. If the courses and distances set forth in the grant be followed, the land in dispute would not be covered by them, although the beginning be lower down the creek than the mouth of Rocky Branch, and be where plaintiff’s lessor contended it was. The suit was commenced in 1829, and a continued possession by the plaintiff’s lessor, and those under whom he claimed, of fifty-six years, was proved.

A plat explanatory of the case was made part of it, and is represented by the annexed diagram.

*428His Honor, upon this evidence, instructed the jury, “ that by construction no preference was given to a natural boundary over a marked line; but where there was in the grant a double description by natural boundary and marked line, it was a question of evidence to the jury, where the two were variant and irreconcilable; and in such a case they must decide which boundary would include the land intended to be granted. The course and distance in the grant must be followed, unless there was a line run and trees marked by the surveyor when the land was surveyed for the grant. A plat variant from the courses in a grant, would not control it.”

He also charged, that a grant was presumed to have been issued for land after thirty years possession; but that such presumption, even after a longer possession, might be repelled by evidence to the contrary. That in this case the presumption was opposed by the averments of the plaintiff’s lessor, that the grant and mesne conveyances under which he claimed, covered the land in dispute. That the jury must decide between the presumption of a grant from the length of possession, and the evidence adduced by the plaintiff himself tending to repel it, whether in fact a grant ever did issue. If no grant could be presumed, and the land in dispute was not included in the grant and conveyances produced by the plaintiff's lessor, the jury were directed to find for the defendant; but otherwise to find for the plaintiff. A verdict was returned for the plaintiff, and a motion for a new trial was submitted by the defendant on the ground that the judge had erred in instructing the jury that it was matter of evidence and not of construction, where an irreconcilable difference existed between a natural boundary and a marked line: whereas, they should have been told that a natural boundary had a preference as a matter of law over a marked line. His Honor admitted the error, and would have granted "a new trial, but it was agreed by the parties that, in order to have the questions growing out of the case as stated above, settled by the Supreme Court, the the new trial should be refused; upon which being done, the defendant appealed.

*429

In the diagram, the land claimed by the plaintiff is represented by A. B. E. F.

The land, according to the courses and distances of plaintiff’s title-deeds is represented by A. B. C. D.

If run off from the mouth of the Rocky Branch, the land will be represented by II. L. M. N., or K. L. P. 0., according as the East and West courses are assumed.

G. H. I. X represents the tract, if the beginning be opposite the mouth of a small branch, near which plaintiff alleges the corner to be.

Q. R. S. T. represents the land granted to James Cotton, upon his own survey, in the year 1772.

W. X. Y. Z. is a copy of the plat annexed to Charles Thompson’s grant.

*430
      *Nash,*for the defendant.

*Mendenhall, contra.*

Ruffin, Chief Justice.

— We concur in the opinion expressed by his Honor,that he erred in leavingthe const ruction of the patent to the jury, to be decided by them upon the evidence. The meaning of a deed as to what land it covers, or as to what estate it conveys, is equally a question of law, and therefore is to be decided by the Court. *What*are the *termini*of the lines, are points ofconstruction; *where they*are, questions of fact. These observations are found in so many cases as to be familiar, without particular references.

From the manner in which the case is stated, the Court supposes that the object of the appeal was not alone to obtain a new trial, but also an opinion upon the points on which the next trial is expected to turn. So far as they relate to matters of law, we will give it.

We likewise think, that where a natural boundary is called for, and marked lines found, (especially if they be not called for as found,) the natural object, as the most conspicuous, certain, and permanent, not subject to alteration or destruction, is the most essential part of the description, and more perfectly identifies the land, than any other. It has indeed been held, that where trees, as well as natural boundary, are called for in the deed, and the trees are found and identified, they cannot control the other call, but must yield to it, as in *Sandifer*v. *Foster,*I Hay. Rep. 237, and *Harris v. Powell,*2 Hay. Rep. 349. As a general rule, we assent to the doctrine of those cases. There the natural objects, called for, were a creek and a river; about which the parties can scarcely be under a mistake, as to their situation or name. But the same reason does not apply to very small streams, which have no name, or may be known by different names, at a remote and recent period; and in. such a case — of which the present seems (o be, probably, a strong example, — we have no doubt, it is open to proof upon direct evidence, that two *branches*have borne the same name; or upon circumstances of possession and the like, that the parties have mistaken the name of the *431particular one, which they intended to make an abuttal of the land. Under such circumstances, it is a proper instruction to the jury, that they must inquire *which*stream the parties call, for instance, “ the Rocky Branchand that the one thus meant is *the*Rocky Branch, which is the true terminus. The opinion of Judge Henderson, in the case of *Cherry*v. *Slade,*3 Muph. Rep. 82-96, exhibits our views fully; and the doctrine was practically asserted in the case of “ *The Cat-tail and Meadow Branch,”*which is mentioned by him, and was familiar to the profession, who were in practice twenty-five years ago. In the present case, there appears upon the map to be no less.than six small streams emptying into the creek within less than a mile, and but one of them is now known by the particular name mentioned in the deed. But the possession taken by Thompson, the grantee, even before the grant issued, and his building a dwelling-house and mill; his conveying to Cotton, (who made the survey for him,) in October, 1774, (three months after the date of the patent,) by the same description, with the addition “ including the plantation whereon I now live, with my mills and improvements, and being a tract or parcel of land granted to me by his majesty’s letters-patent, bearing date, &c.the possession taken by Cotton, and continued by him, and those claiming under him, for fifty-six years; the reputation of the boundaries according to known and visible objects, recognised and called for as such, upwards of forty years, in conveyances of adjacent tracts of land, altogether form a chain of concurring circumstances, the force of which, it would, seem, that nothing could repel; and which, if not repelled, establish .the branch, near which the survey, as claimed by the plaintiff’s iessor began, to be that called for as “ the Rocky Branch.” The naked possession would almost prove it, did it stand alone; but when supported by the other facts, it seems to be put beyond a question. The same circumstances, together with the form of the plat, and the marked trees, show that the calls of the patent for courses, reverse the courses actually run ; and under that class of cases, of which *Person*v. *Roundtree,*(cited in *Bradford*v. *Hill,*1 Hay. Rep. 22,) is the leading one, the patentee may hold *432the land actually surveyed. It is true, *the*plat *cannot*control, of itself, the words of the body of the grant, but it is by law, annexed to th-3 grant, and always referred to therein, as being annexed. When,, therefore, it appears from it, that the land surveyed is on the east side of the first line, it is a circumstance, with others, from which it may be inferred, that, in the certificate of the courses, the surveyor reversed them by mistake, so as to transpose the land, and place it on the west side of that line.

The Court is therefore very reluctant to set aside a verdict, which appears to us to be so just, that one to the contrary can never be expected from any jury. But as the Superior Court did, in our opinion, err, and the defendant insists on not being bound by the verdict, we cannot withhold a right which strictly belongs to him; for we cannot tell upon what ground the jury found, and the point on which we think they ought to have found for the plaintiff, involves an inquiry of fact, on which this Court cannot anticipate their opinion.

This result renders it unnecessary than an opinion should be given upon the views entertained by his Honor, upon the subject *of the*presumption *of conveyances. Lest they*should be deemed those of this Court, however, we cannot forbear'from expressing, in general terms, our dissent from them. We deem it entirely incorrect to hold that a party, who upon the trial of a cause, in which he asserts a title to the thing in dispute, offers an *argument,*that a particular deed vested the title in him, is precluded, either by way of estoppel or presumption, from insisting that another deed shown in evidence or presumed, did thus vest it. The ground and nature of the presumption was, we think, mistaken by his Honor. It is indeed a presumption of fact, to be deduced by the jury; but it is deduced upon legal principles, and may properly be found, and in many cases ought to be found, although the jury and Court may be satisfied that it never was in fact made; and the Court may advise the jury in proper cases, that reason and the law requires them to make it, unless the contrary be proved, in the same manner that they are instructed that killing under certain circumstances, is a killing *withmalice,*or that they *433
      *ought*to find a *conversion*upon evidence of a demand and refusal, if there be nothing more. As the case does not turn on this question, we deem it useless to pursue it further. In the particular circumstances of this case, the lessor of the plaintiff could not probably avail himself of the ,. , , . , . . presumption that a grant had issued, containing proper descriptions of the land claimed by him ; because his own ♦ » i7»*« title was a recent one, and by a description in conformity-to that in the patent of 1774. The effect of the circumstances, so far as he could use them, is rather to show, what are the true boundaries of the grant of 1774, than that-another one issued. As that is so, the case must go to another trial.

Per Curiam. Judgment reversed,