#### DEN ON DEM. of JOHN E. BECTON *vs.*ISAAC CHESNUT.

June 1839

The *construction*of a deed, upon the question of boundary, is as much a legal question, as upon any other point, although it is the province of the jury to say which, or where situate, may be the particular tree, stone or stiearn called for; and it is a principle of construction-clearly settled, that a natural and permanent object shall be deemed the boundary in preference to the line designated by course and distance. It is true that the call foranaturalboundary may be, itself, vague or imperfect, or even contradictory; as for a stream, where there are two of the same name, or it be uncertain which of the two bears the name, or for two natural objects, e. *g.*a branch and a pocosin, which, upon evidence, appear not to beidentieal, but to be at different places; then, necessarily, the case is open for evidence to the jury, as to which was the object meant, and by which the survey was actually made.

If the call of a grant be “ upa pocosin and branch N. 71°, W. 45 poles; thence still along said branch and joining Keith’s land, N. 15°, W. 98 poles; thence N. 66°, W. 87 poles to a gum near the branch;” and there is nothing to show a *discrepancy*in the *objects called for,*to wit, the pocosin and branch, the only question is, whether the branch, as a distinct natural object, in itself defined and appropriate for the line of a patent, is to be followed in preference to the mathematical description by course and distance, and it is clearly settled that it is.

The cases of *Brooks*v, *Britt,*4 Dev. Rep. 481, and *Hurley*v. *Morgan,*1 Dev. & Bat. Rep. 425, approved.

Where a grant describes a tract of land as lying on a river, and begin* ning below the mouth of a branch, and the last line hut one calls for a tree on the river, and thence *up the river to the beginning,*these ter*mini,*independent of the other calls of the grant for the branch, clearly fix the beginning of the survey on the river.

This was an action of ejectment, tried at Jones, on the last circuit, before his Honor Judge Dick.

The lessor of the plaintiff claimed under a patent, issued in 1738, for 288 acres of land, lying on Neuse River, and bounded as follows; •“ Beginning at a Hickory, below the mouth of Beaverdam branch, and runs up the pocosin and branch, North 71°, West 45 poles; thence still along said branch, and joining Keith’s land, North 15°, West 98 poles; thence North 66°, West 87 poles, to a gum near the said branch; thence North 21°, East 90 poles, to a White Oak; thence North 80°, East 144 poles, to a Red Oak; thence South 60°, East 100 poles, to a Pine; thence South 20°, East *336142 poles, to a Red Oak by the River side; thence up the to ^ie beginning.” The lessor of the plaintiff claimed to begin at A, in the annexed diagram, and thence to B, C, D; jg, Fj G and H, so as to include a small field of three or four acres in the defendant’s possession, near the line D, E. On the other hand, the defendant insisfed that the beginning of the lessor of the plaintiff’s land was at K, and thence to L, M, N, O, P, Gt, R, so as to exclude the land in his possession; and it was admitted by the plaintiff’s lessor, that if the patent did begin at K, he could not recover. No Hick* ory was found at either A, or K, and it did not appear that there were any other trees corresponding with those called for in the grant.

DIAGRAM.

*337His Honor instructed the jury to find for the defendant, if they should think the beginning was at K. And he further" instructed them, that, supposing the beginning to be at A, then the branch must be followed for 143 poles, (the length of the two first lines,) because it was called for in the grant: and that, if running that way, the patent would not cover the defendant’s possession, their verdict should, in that case, also be for the defendant. There was a verdict and judgment for the defendant, and the .lessor of the plaintiff appealed.

*J. FI. Bryan*for the lessor of the plaintiff.

The Court erred in laying down, as a rule of law, what was only a rule of evidence, and erred also in laying down the rule. *Orbison*vs. *Morrison,*3 Murph. Rep. 551. The true enquiry is, how the land was originally laid down; and that is a question of fact, and the rules for ascertaining it are mere guides, and not rules of Jaw. The pocosin called for, in the patent, is as much a natural boundary as the branch, and the Judge should not have directed the jury that they must follow the branch. *Brooks*vs. *Britt,*4 Dev. Rep. 481, decides that a swamp which was called for, was the boundary, disregarding course and distance, but leaves it to the jury to say, whether the run of the swamp or its margin was intended. That case shows that the instruction here is too strict.

*Badger*for the defendant.

The instruction which the Court gave the jury, in this case, was in precise accordance with that given in *Brooks*vs. *Britt.*A branch is a more certain object than a pocosin, and is to be followed, when different from it; but here the branch is in the pocosin, and is to be followed as the more certain description, as is clearly Shown by the call of the second line.

Ruffik, Chief Justice,

after stating the case as above, pro^ Seeded as follows: The opinion of the Court is for the defendant, upon each hypothesis, as to the beginning. If that could be supposed to have been at A, then, certainly, the plaintiff could not follow the course and distance so as to go to R, because that would be going nearly in a rectangular direc*338tion *from,*the branch, instead of running *“ along”*it; and the second line from B to C, would not be near the branch, except at its termination. It is said, however, that boundary is a question of fact for the jury; and that, as both the pocosin and branch are called for in this grant, this was, at least, a fit case for proof to the jury, as to which one of them should control the calls for course and distance. In support of these positions, the cases of *Orbison*v. *Morrison,*3 Murph. 551, and *Brooks*v. *Britt,*4 Dev. 481, have been relied on. But the Court cannot allow it be questioned, at this day, that the *construction*of a deed, upon the question of the boundary, is as much a legal question as upon any other point, although it is the province qf the jury to say which, or where situate, may be the particular tree, stone or stream called for; nor that, as a principle of construction, a natural and permanent object shall not be deemed the boundary, in preference to the line designated by course and distance. It is true, that the call for a natural boundary may be itself vague or *imperfect,*or even contradictory; as for a stream, where there are two of the same name, or it be uncertain which of the two bears " the name, or for two natural objects, e. g. a branch and a po-cosin, which, upon evidence, appear not to be identical, but to be at different places; then, necessarily, the case is open for evidence to the jury, as to which was the object meant, and by which the survey was actually made. Of this last kind was the case of *Brooks*v. *Britt,*in which it was held, as a matter of law, that Swift Creek swamp was the boundary; but it was left to the jury to say what was the swamp — it being uncertain whether the run, or the margin of the sunken land, was so called. The same rale was adopted in *Hurley*v. *Morgan,*1 Dev. & Bat. 425, as which qf several streams was the particular branch called for. But, in the present case, there is nothing to create the suspicion that the pocosin and branch do not so entirely coincide as to render it certain that the branch, as a distinct natural .object, in itself defined and appropriate for the lin e of a patent, was not the special terminus of the tract. The case states *no discrepancy*in *the objects*palled for. The dispute is only where the object called for, as the beginning, stood; and whether, from that, the run*339ning is to be according to the natural or the mathematical description. It is settled-law, that it must be according to former.

In truth, however, the question thus submitted to the jury did not arise; for we think it clear that the patent begins at K, or, in other words, on the river, and immediately below the mouth of the branch mentioned. The beginning could not be at A, which, according to the plat, is about 100 poles above the mouth of the branch; for the patent describes the land as lying on *Reuse*River, and beginning below the mouth, that is, on the lower side of the mouth of the branch; and the last line, but one, goes to a red-oak *by the river side,*and thence *up the river to the beginning.*These termini, independent of the calls for the branch in the first and second lines, clearly fix the beginning of the survey on the river; and, consequently, by the admission of the plaintiff himself, the survey made from that point would not include the land claimed by the defendant.

Per Curiam, Judgment affirmed.