#### *The Heirs at Law of Wolfe vs. William Knotts.*

*,*Wliere the verdict of a jury is contrary to tlie' weight of evidence in a cause, and against the established rules of location, a new trial will be granted.

*Before*Richardson, J. *at*Orangeburgh, *Fall Term,*1841.

This was an action of trespass to try titles. The land claimed by the plaintiff was granted to John Wolfe, for 200 acres, the 4th May, 1775, who conveyed it to his son, Joseph Wolfe, 14th February, 1814, and the plaintiffs are his heirs at law.

On the location of the land to John Wolfe, the case depended.

The annexed diagram will more clearly explain the points made, and the questions to be decided.

A. B. C. D. represent the plat which accompanies the grant to John Wolfe. K. E. F. and G. are the lines of a grant to one Robinson, in 1758, and B. C. and L. embrace the land in dispute. The corners at A. B. C. and D. are marked on the original plat, and the only question was, whether a corner was made at C. A pine is called for at that point, on an island in Bull Swamp, which the survey- or did not find. A hickory station is called for at H. on the line D. C., and is found at the proper distance. All the other stations and line trees on the lines B. A. — A. D. and D. C. are found, and an island is found in Bull Swamp, corresponding with the one represented in the original plat, and at the correct distance for the corner, O. On which some of the witnesses testified that many of the old growth of pines had been destroyed, and a new one had sprung up. .

Samuel Pearson said, that he was present at a re-survey of this land, about 32 years ago, with the grantee, and a surveyor named Johns, or Jones. The grantee, he. understood, was about to convey it to one of his sons.

They then found a pine corner, standing on an island, about the point C. They did not cross Bull Swamp. A line was marked somewhere in the direction of B. C. David King was on the island in 1836, and found no corner at C.; but James Wolfe, one of the plaintiffs, who was *76present, said it had been there. John King proved that Janies Wolfe, a few years since, said there had been a corner on the island, but it could not be found, and if so, his mother would hold all to Knott’s line.

The grant to John Wolfe, on the line B. C., called for lands of the said John Wolfe, and the plaintiffs claimed to extend the line D. C. to L.; contending that the corner at C. not being found, they would go to the boundary called for. The only evidence that the land granted to Robinson ever belonged to Wolfe, was derived from the surveyor, Barrillon, who stated, that in locating a tract of land for one Mack, which was run in 1792, it called for this tract as' Wolfe’s; and Mclnnis also stated, that about 1826, he surveyed the lands of the estate of Joseph Wolfe, for partition among his heirs, and the Robinson tract was then Wolfe’s. Mclnnis also said, in locating the John Wolfe tract then, he stopped at the comer C., and that he has since located a warrant in favor of one Wm. P. Wolfe, embracing the triangle, B. C. L., and otherlands below on the swamp, and that a grant was, he believes, issued to said William P. Wolfe.

Barrillon and Mclnnis thought the corner at C. was never made; I. D. A. Murphy said he would locate by the corners.

No marked tree was found on the line D. L., beyond the hickory at H.

*77

*78Barrillon stated that he called on Pearson to shew him where the pine corner stood ; he pointed out a place near at hand, which did not, by a few yards, correspond with the distance. He then shewed a pine log, fifty yards off, and said that he could not say exactly where the corner stood; he could not say if Johns made the corner, or found it, or whether they run an old line or not.

Barrillon found a line nearly corresponding with the line B. C., about 47 years old. The line B. E. is not a straight line, but makes a slight angle at K.

The jury were instructed, that if they thought the pine corner to be established by the evidence, the line D. E. must stop at C., where the pine originally stood. But if they thought that corner not established, they might extend the line to L; that is, to the land called for by the grant to John Wolfe, and according to the opinion of Bar-rillon and Mclnnis. The jury found for the plaintiff, the land in dispute; and the defendant appeals:

1st. Because the plaintiff’s lines should have been closed, according to the corners and marked trees called for on his plat; all of which were either found, or accounted for.

2d. Because it was not proved, that any such boundary, as the one adopted by the jury, existed in 1775, when the plat of plaintiff was located.

3d. Because the finding of the jury was contrary to the law and evidence, and the well established rules of location.

Curia, per

Butler, J.

We are well satisfied, that the location adopted by the jury, in this case, should not be sustained. It is not only against the evidence, but it violates the obvious principles by which the plaintiff’s grant should have been located. The three corners, B. A- and D., are found as called for in the original plat; the fourth corner of the tract, though not called for in the grant, is represented on the plat, to be on an island, lying to the left, and in the neighborhood of Bull Swamp. The original surveyors certainly knew where the island lay, and intended the lines running from B. and D. to intersect on it; and the course of both these lines would go to an island. On the line from D., a station is found at H., and the distance *79called for would stop at C., on an island, without crossing the creek. It could never have been supposed, by the original surveyors, that the lines from B. and D. should cross Bull Swamp, before they intersected; otherwise, they would have represented the creek as they did the island. To get to K., the creek is crossed twice, and the course from B. widely deviated from, and the distance from D. greatly extended; not only perverting the shape of the original plat, but making a comer where there was no island to be found; for it was not pretended that any island was found to the right of Bull Swamp. It appears to me clear, that the fourth corner must be located on an island, and that C. is on the very island represented and called for, as no other was found corresponding with it. This is a conclusion, drawn from an inspection of the plats and grants, and is abundantly warranted by the positive, and, I think, satisfactory evidence, of the witnesses, particularly that of Pearson. In questions of location, juries will not be allowed, by the Court, to commit palpable errors. We think the jury, in this case, has committed such an error, and, therefore, grant the defendant’s motion for a new trial.

*T. W.*Glover, for the motion. *Wliilmore,*contra.

A. P. BUTLER.

We concur. J. S. Richardson, John Belton O’Neall, Jo si ah J. Evans.