#### *Joachim Faulkenberry*v. *John*Truesdell, *Sen’r.*

Where, in an action of trespass to try title, the Court thought the finding of the jury more conformable to the rules of location as applied to the facts of the case, than any other which they could prescribe, they refused to set aside the verdict.

The end arrived at by all the rules of location, is to establish for the plaintiff in an action to try the title, the lines run or described in the grant he produces, when such a muniment of title is produced elder and therefore paramount, so far as the evidence may permit, and no law or adverse proof may overrule; but when a plaintiff comes into Court with a grant and plat, which, though older, is surrounded by obscurity, arising either from the fact, that the surveyor platted by description or from any other carelessness, he is not entitled to demand that the Court shall push to a fanciful extent, or strain inordinately the idea, sometimes indulged, that the elder grant is to he more favorably located.

*Before*Wardlaw, J. *at Kershaw, March,*1850.

TRESPASS TO TRY TITLES.

The case was narrowed into a question of location, which may, perhaps, be understood by reference to the annexed diagram. The small parcel on which the trespass was alleged to have been committed, is shown by D.

*222

The plaintiff derived title from the Sumter grant, for 1500 acres; the defendant from the Burns grant, for 275 acres, which was of later date, and called for the Sumter land as a boundary.

These papers were in evidence :

The Sumter grant called for the Williams land, previously granted, as the boundary of one line, and for the Kershaw land as lying within the angle made by the two next lines on the West; the shape represented, being such as is made by lines A B H G with right angles at B and H ; and no vacant land being called for between Williams and Kershaw, although the boundaries around every part of the Sumter grant are specially designated, and vacant land is called for in several places.

The Williams grant was introduced, and covers the triangle ABN. The Kershaw grant was not in evidence, but if there was such a grant, some or all the land embraced by it, must have been again embraced by the Burns grant. The plat annexed to the Sumter grant, represents the lines as if they had been run from A toward G, with the land on the left. It shows no interval between the Williams land and the Mathews land next on the east, such as is now really found between A and P. Beginning at A and running on. the Williams line, the distance required by the Sumter grant stops at M. There is, however, no doubt that B is the true *223west corner of the Williams grant, and that G is a true pine corner of the Sumter grant. From some remote part of the, Mathews land to G, the Sumter land was probably not actually surveyed before the grant, as open corners without any special designation are represented on the plat. The lines of the Burns plat are represented by B H G. From G toward F, are found marks on trees older than the Sumter grant, probably made for the Kershaw land. The representation which the Sumter grant makes, of the course of the line bounded by the Williams land, departs ten degrees from the true course ; and there is the same difference between the course called for by the Sumter grant and the line G H ; two and a half degrees on the other sides between the course called for and GO; B C and E F are parallel, and both on the course required by the Sumter grant; the distance of that line is shewn byPKorBR; and the distance on the line which terminates at G, is shewn by G F.

The surveyors of the plaintiff adverted to rules, which were understood to require that the senior grant should be located to the greatest advantage, and that, in connecting ascertained points where no marks are to be found, the boundaries which were called for should be followed to their termination, and then course and distance be conformed to a.s nearly as possible. Under these rules, (as the Kershaw boundary was not known) they thought it proper to begin at G, run on the course required (or rather the course of the old marks) to the termination of the distance at F, and thence on the required course of the next line toward E. One of them thought that he ought to stop at K, the end of the distance required, and thence run straight to B, the nearest point of the acknowledged boundary-thus adding a line, and changing materially, the shape of the plat. The other thought, that from F he ought to run beyond K to the point E, where his line would be intersected by a line from B (run on the course which the Sumter plat lays down for the line, bounded in whole or in part by Williams,) and then from E to B : — thus, also, adding another line and departing somewhat (but less than the other) from the shape of the plat.

The surveyor for the defendant thought, that under the rules adverted to, a line from F to B, (which would divide the land in dispute) would be more proper than either two of the lines which the other surveyors respectively had adopted in place of one required. He, however, believed that B was a corner, which the Sumter plat represented as common to the Williams, Kershaw and Sumter grants; and taking that point and G as both fixed corners, he considered that the true mode of location was, to run on the required course from either, and establish the point of intersection as the immediate corner.

*224Adopting this mode (except that in following the marks between G and F, he departed two and a half degrees from course) he established the lines A B O G, as the true ; and so showed that the land, whereupon the trespass was complained of, belonged to the defendant.

The Circuit Judge left it to the Jury to decide the location, instructing them to inquire whether B was a corner of the Sumter grant, and giving his opinion that, if it was, the mode adopted by the defendant’s surveyor was correct, and the land in dispute belonged to the defendant.

His Honor thought that there were some indications that B, the acknowledged western corner of the Williams land, was represented on the Sumter plat as a corner, which he called to the consideration of the jury, viz:

1. No corner between A and that line of the Sumter land which runs west from A is laid down.

2. The distance from A to B is ten chains more than the distance required by the Sumter plat.

3. On that plat, the Williams land seems to be laid down as a boundary along the whole line running from A, and the Kershaw land as the boundary of the two next lines.

4. The shape oí the plat, open corners, right angles, marks older than the Sumter grant, and other circumstances which influenced the opinion of the defendant’s surveyor.

He thought F B, which would divide the land in dispute, was a nearer approach to the true location than F E B, or FKB; than either of these latter, he thought F L B would be better, made by a prolongation of the line A B to the point of intersection : but, as before said, he intimated his opinion in favor of G C B. He did not, however, say that the Sumter grant could not be located as the plaintiff’s surveyors had done.

There was no other testimony which could affect the question, except, possibly, the fact proved that about 1795, one Trantham, (under whom the plaintiff claims) cleared a field, lying mostly east of the line B H which inched over the line C H a small distance, and over the line G F a less distance, so as in the whole, to embrace one fourth of an acre west of the line B H. This field was cultivated by Trantham ten years, and was turned out long ago, and has not been in cultivation for thirty years. Either party has had possession of his tract for thirty years and more, on some part distant from that now in dispute; the first actual possession under the Burns grant, having commenced about 1808.

The jury found for the defendant.

The plaintiff appealed and moved the Court of Appeals to set aside the verdict, and for a new trial, on the following grounds :

*2251. Because his Honor charged the jury, that if the surveyor of the Sumter grant intended to make the western corner of the Williams land a corner of the Sumter grant, the locationv made by defendant’s surveyor was correct, and they should find for the defendant.

2. Because his Honor charged the jury, that there were indications on the plat of the Sumter grant, that the surveyor did intend to make the western corner of the Williams land, a corner of the Sumter grant.

3. Because his Honor charged the jury, that the Sumter grant could not be located to cover the whole of the trespass'; and that, in his opinion, no part of the trespass was covered by that grant.

4. Because the verdict of the jury is contrary to the law and evidence of the case.

*Smart,*for the motion.

*Chesnut,*contra.

*Curia, per*Withers, J.

The end arrived at by all the rules of location, is to establish for the plaintiff, in an action to try the title, the lines run or described in the grant he produces, where, as in this case, such a muniment of title is produced, elder and therefore paramount. If the original surveyor made his tracks, the object is to retrace them ; if he platted by description, the object is to fulfil the terms of it, so far as the evidence may permit and no law or adverse proof may overrule.

Since then the object is to follow the original surveyor, it is proper to begin where he did, if that point can be ascertained ; at all events not to reverse the direction of his movements until, in pursuing them, we have reached a point beyond which his footprints are no longer to be discerned.

In regard to those lines that involve this contest, the direction of the original survey was from an easterly to a west-wardly point. It may well be conjectured that the surveyor did not actually run the line along the Williams boundary, as the corners represented do not appear to have been marked. Yet the distance is given, 49 chains, and so is the course, S. 80 W. To establish that line, especially its termination westwardly, is all-important in this question of location. On that line the boundary called for is the Williams tract. Its beginning point is on the Mathews tract. That tract is represented on the re-survey. The Williams tract is satisfactorily located. Then there seems to be a propriety in beginning to trace that line either fiom the Mathews tract, or from the eastern corner of the Williams tract. It is not material in this case at which point, of these two, we may begin. The course of the plaintiff on that boundary is controlled by the line of Williams. Where shall he stop *1*
      *226His distance falls short of that of the Williams line ; the latter terminates at B. Was the point B designed by the surveyor of plaintiff’s plat to be his corner as well as that of Williams ? was¡ t]jgn must be confined to it. That question was distinctly submitted to the jury, and they have decided that B was plaintiff’s corner. If there was evidence to lead to that conclusion, what is there in the testimony to overrule it ? There was evidence enough to sustain such a finding by the jury, and we can discern none which shews that they were wrong. It is sustained by the facts, 1st that B is a corner of ■Williams’ land ; 2d the plaintiff’s platt calls on that line for no other boundary, as to any portion of it; 3d more than his distance is secured by adopting that line, which is, so far, a favorable location for him. The plaintiff would go beyond B ; what is to justify that *1*No adjacent boundary, no marked object, neither distance, nor quantity, nor the form of the plat, nor any necessary mode of closing with the next nearest ascertained point, can lead us beyond B. If the surveyor passes that, where shall he stop ? We must, therefore, concur with the jury in fixing B as one corner for the plaintiff.s

From that point how shall we proceed ? The survey must be guided by such means as the plaintiff affords. His plat gives course and distance, and represents a comer between B and G. If G be given, and we have also the course from that, and there be nothing to control that course, the mode of closing is not at all doubtful; the lines must be run, by course, from the two ascertained points, and the place of intersection will show the intermediate comer. Now the point G is given; it is confessedly a corner for plaintiff. The result has been stated ; the intermediate comer will be found at H, which is fatal to the plaintiff. If the line from G be conformed to certain old marked timber for a portion of the distance, the result to this case would be the same. In so closing from the ascertained points, B and G, there is no departure from the elements of location which the plaintiff’s own plat affords, except in the particular of distance. In closing by any other mode from B to G, we should abandon the description of that plat, both as to course and distance, not to mention shape also, which would be necessarily incident to the other variations.

If the mode of closing between B and G was indicated by the plaintiff’s platt to be by a single line instead of by two constituting an intermediate corner, the case of *Cain Hodge*might be invoked. If distance be taken on the course from B, and the like be doné on the course from G, and the points so made be closed by a straight line, while this would give three lines and two corners, instead of two lines and one corner, and be wholly unauthorized by any rule of location, the trespass would at the same time be excluded.

We shall not dwell upon the fact, that the grant under *227which the defendant claims, was located in the year and within a few months next following the date of the plaintiff’s, so as to include the *locus in quo.*It called for land, using the language, “said to be General Sumter’s,” or some equivalent words. It is probable either that General Sumter’s land was not located the year preceding, as the plaintiff claiming under him, now contends, or it was so carelessly and negligently designated, as to invite an intrusion by a subsequent grantee. When a plaintiff comes into Court with a grant and plat which, though older, is surrounded by obscurity, arising either from the fact that the survey has been made at the fire-place, rather than on the field, or from any other description of carelessness, he is not entitled to demand that we shall push, to a fanciful extent, or strain inordinately the idea, sometimes indulged, that the elder grant is to be more favorably located.

We think the finding of the jury in this case is more conformable to the rules of location as they apply to the facts adduced, than any other which we could prescribe. Unless we could dictate a better re-survey than that which is sanctioned by their verdict, it ought to stand; and, therefore, the motion must be refused.

Evans, Wardlaw and Frost, JJ. concurred.

*Motion refused.*