#### *John M. Felder vs. Henry Bonnett.*

1. On a question of location, a new trial will more readily be granted, tiran on most other cases depending upon facts, in consequence of their near approach to questions of* law.

2. Natural boundaries, in questions of location, are to prevail, unless there may be some doubt about them, and this doubt certainly removed by artificial marks. In such a case, the artificial marks will have effect, although of inferior degree.

3. Where a survey called for Dean’s Swamp as a boundary, it was held, that the creek, or main stream of the swamp, was intended, and not the outer edge, or margin of low, marshy land, that frequently bounds the main stream.

4. The declarations of a tenant, after he has aliened his right and interest in the land, is inadmissible evidence to prove where a line ran, or a tree stood.

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

This was an action of trespass to try titles to a tract of land, lying on Dean Swamp.

The decision of the case depends, mainly, on the location of a tract of land granted to William Hall, for 472 acres, in January, 1792, from whom the plaintiff deduced title. A diagram is annexed, which will explain the questions made, as to the location.

A. B. C. D. E. F. and G. represent the tract of 472 acres, granted to William Hall. M. N. O. and P. is a grant to one Clarke,- for 200 acres, dated June, 1772, now owned by the plaintiff. H. I. K. and L. represent the lines of a grant to Henry McMichael, for 97 acres, dated 23d November, 1835, devised to defendant, and is the land in dispute. Numbers 4 and 5, are two tracts granted to Hall, in 1801, and now held by the plaintiff. The trespass was admitted. 1, 2, and 3, are in both McMichael’s grant, and the grants to Clarke and Hall.

*45

*46The William Hall tract, of 472 acres, calls, on one side, for the “ edge of Edisto Swamp,” and on the other, for “ Dean Swamp,” and on the side of Dean Swamp, neither course nor distance are given, in the plat.

It was insisted, for plaintiff, that the *run*of Dean Swamp, was intended, and for defendant, that the *edge*of the swamp. No mark tree was found, from D. to A., and the course and distance stopped-chains short of the run of Dean Swamp, at A. which is now, and has been for many years, in cultivation.

On the part of defendant, John Corbett said, that, at a survey of these lands, some 20 years ago, he was present with William Hall, Mr. Coalter, and Major Felder, on the dividing line, M. Q,., and they found a Pine corner, somewhere about N., and, upon that occasion, Hall said he had not run to the creek. Objection was made to the admission of Hall’s declarations, because made long after he parted with his interest, in 1798. The objection was overruled.

On the part of plaintiff, Allen Porter stated, that Mc-Michael admitted the plaintiff’s claim, before he run the 97 acres, and offered to purchase a small portion within the lines of the grant which he obtained in 1835, below N. R. There were a few acres cultivated, by those under whom plaintiff claims, within the lines of the McMichael grant. The line K. I. does not define the edge or margin of the swamp, and the surveyors differed as to the number of acres of swamp in the McMichael grant; and they also differed in the representation, of Dean Swamp, in con-nexion with the Clark survey. . The plaintiff’s surveyor locates the line N. O., on the western side of the run, which is in conformity with the original plat, whilst the defendant’s surveyor intersects the run with that line.

The witnesses stated that the stream is, and always has been, called Dean Swamp.

The jury found the following verdict: “ We find for the defendant, all the swamp land lying within the new survey granted to H. McMichael, in Dean Swamp, that is not covered by the Clark survey, nor the survey made in the Edisto River Swamp.”

*47The plaintiff appealed,' on the grounds .

1. Because the grant to William Hall, under which plaintiff claims to hold, embraces all the land in dispute, and being older than the grant under which defendant. claims, the verdict should have been for the plaintiff.

2. Because the evidence clearly established, and the verdict admitted, the plaintiff’s claim to a large portion of the land in dispute, yet the jury found for the defendant.

3. Because the verdict is uncertain, and does not define, or settle the rights of the parties.

4. Because the declarations of Hall, from whom plaintiff deduced title, made long after he had parted with his interest in the lands, ought not to have been admitted in evidence.

Lastly. Because the verdict is contrary to, and without evidence.

*Caria, per*

O’Neall, J.

Questions of location approximate so nearly to purely legal questions, that a new trial is more readily granted for error in them, than in any other class of cases, depending upon facts. For rules of location are legal rules, and the facts to which they are to be applied, are often of such a character, that there can be no mistake in judging here of their effect. The first rule of location is, that natural boundaries are to prevail, unless there may be some doubt about them, and this doubt is certainly removed by artificial marks. In such a case, the latter, although of inferior degree, will have effect. In the case before us, the, survey of William Hall calls for Dean Swamp, as its N. E. boundary. The only difficulty which could arise, would be, whether the surveyor called for the swamp of the creek, or the creek itself, by the name of Dean Swamp. If there were any artificial marks, ■ which would lead us to conclude that the surveyor, stopped at the margin of the swamp, then we would be at liberty to adopt it as the boundary ; but, in their absence, what is meant by Dean Swamp, must be decided by the known and established understanding in this State. The meaning may be ascertained, by appealing to the usage even of Orangeburgh, in this behalf. Besides Dean Swamp, they have many others, such as Bull Swamp, and Coccaw *48Swamp. This name is appropriated to the run, and not to the swamp. In larger streams, such as Santee and Ed-isto, the swamp is .spoken of as distinct from the river, but in creeks with a margin of swamp, the usage is universal in this State, to speak of the creek and swamp as one. In this case, however, I do not think there is any difficulty; for the surveyor showed that he intended to go to the run, by the different manner in which he called for the southern boundary. He there calls for the edge of the South Edisto Swamp. When he calls for the N. E. boundary, he calls for it as Dean Swamp, and represents the stream, and, indeed, judging from the face of the plat, it appears that the corner stands on the bank of the stream.

In *Coates vs.*Matthews, 2 N. *&*McC. 99, Little Saluda, in Edgefield district, was represented as lying within the southern line of the survey. It was held, that the river thus represented, must control the location. So, here, the grant to William Hall must be located by the run of. Dean Swamp. It is true, in following the stream, the grant to Clarke is found to run beyond the creek; and, as that is an older grant, the rule governing the location of Hall’s grant, is to follow the run of the creek, until the line of Clarke’s survey is reached, and then to follow the lines of Clarke’s survey, until they carry the survey back to the creek, which is then to be pursued to South Edisto Swamp.

When this is noticed properly, it explains Hall’s declarations. For it was on the line M. Q,., which is identical with the line of Clarke’s grant, that Hall said he did not run to the creek. This was the fact at that point, for Clarke’s grant intervened. But we do not think Hall’s declarations were competent evidence. They were made after he had conveyed. The rule is, that the declarations of a tenant in possession, or a grantor, before he conveys his interest, may be given in evidence. *Turpin vs.*Brennan, 3 McC. 261. After a grantor has conveyed, he may be sworn to impeach his own title, for, in that case, he testifies against his own interest, and this shows, at once, that his declarations cannot be evidence. The question in this behalf, is like that arising in a suit upon a note of hand, when it is passed away, and the declarations of the payee, *49after he parted with his interest, are attempted to be given in evidence. In *Lightner ads.*Martin, 2 McC. 214, it was ruled, that they were inadmissible. In *Lester vs. Martin and*Patrick, id. 241, it was ruled, that declarations made by the endorsee, béfore he parted with the note, were competent; and, in that case, Judge Nott stated the true rule. “The declarations, acts, (fee., relating to the matter in dispute, made by a person *while he is interested,*is good evidence against a party claiming, subsequently, under such person.”

*T. W.*Glover, for the motion. *Mr. Whitmore,*contra.

The motion for a new trial is granted.

JOHN BELTON O’NEALL.

We concur. J. S. Richardson, Josiah J. Evans, A. P. Butler.

Earle, J. absent.