Year: 1861

OFFICIAL.


Decisions OF ihe Supreme Court oF the


state of tennessee, at Knoxville, Sep.


IenAoer Term, 1850.


Birdseye vs.. Turner.


This was an action of ejectment brought by Birds
eye against Turner. Verdict and Judgment were
for the defendant.


The general question presented for our deternin-
alton is a somewhat novel question of boundary.


The plaintiff claims title under grant for
5000 acres Of land lying in Cooke county, issued to
him on the lst day Of January, 1872


There is an admitted error in the course of one
of the calls of the grant. From ''s pine corner to
Osborne Balls 800 acre survey" the next call is
North with W. z. Gillets' 5000 acre survey, $50
poles to a stake on E Brdseyes $500 acre survey"


If disregarding the course of the call which is
probably errOneOus-the line be run to the line of
E. Birdseyes grant called for, the land in cOntrO-
versy will be ncluded but if the course be pursued
the line will reach the tract called for, and the
land sued for will be lett out of plaintiffs grant


The grant to E. Birdseye. called for in the plain
tifs grant, is the same date with the plaintiffs and
was surveyed one day before. The entries are also
of the same date.


The particular line of the E. Birdseye survey
called for in the plaintiffs grant, is proved to be an
unmarked line. The circuit Judge was of opinion,
and so instructed the jury, that call for course
and distance. could not be controlled by a call tor
an unmerked line of an adjoining tract The cor
rectness of the charge was insisted upon IN the
argument with much ingenuity and force. But the
argument if admitted to be correct, will prove too
much It will necessarily lead to the conclusion
contrary to the uniform of decision in this
State that an actual survey and monuments Of
boundary are essential to the validity of grant.
The general prigcpe is well established that
party cannot depart from call in his grant, for
course and distance except by force Of established
monument OF boundary or marked lines made at the
time of the original survey. Humph. 205.


But does this principle govern the present case ::


This is a new, and certainly somewhat difficult
question. The solution Of the question as 1t seems
to US, necessarily involves the inquiry whether or
not the unmarked line of the E. Birdseye grant be,
in legal contemplation, a valid boundary line or
simple nullity.


ID will be borne in mind that this survey was
made before the plaintiffs. Now, if this line Of E.
Birdseye's survey, though unmarked, be etfectusl
to fix the legal. definite. positive and permanent
boundary Of that grant; much so (aH other OBJ
lection aside) As II the line had been actually sur
Veyed and marked, upon what principle can 1t be
maintained that the call Of prior entry for such
unmarked line should not be as eftectua as If the
line had been marked.


To sustain the charge then, 1t must be first e.tab
shed that the line of E Birdsey es grant called for
in the plaintiff s, Is a nullity; or in other words
that so far as this unmarked line is concerned the
grant has no legal boundary.


This proposition cannot be maintained, without
as before stated entertaining the uniform course Of
judicial determination since the organization OF the
States.


In Smith vs. Buchanan, Tennessee Rep. sos, it is
laid down that a survey is not of the essence Of a
grant 1t is sufficient if the land be described in
the grant as thatit be identified. and its boun-
daries ascertained If this be done, it will hold
the land though no survey was ever made in fact.


In Rucker vs.. Vaughn, Peck's Reps. 212, 1t is
said that a survey is not necessary TO establish
boundary.


In Ramsey VS. Monroe, Sneed 329, it is held that
possession for years, under an entry the calls
of which are sufficiently special and certain to in
dicate clearly the land TO be appropriated, aud to
enable the surveyor from the face Of the entry, to
trace the lines with the compass upon the ground,
in accordance with such calls Is sufficient to pro-
tect the posessOr to the extent Of the calls under
the second section Of the statute of limitation
Such an entry IS good against subsequent enterer,
and Is sufficient notice to all persons and for all pur
poses Ii is said that the boundaries Of the entry,
IN such case are in contemplation of law fixed and
certain, before being traced upon the ground and
marked by the surveyor, because capable OF DeIng
fixed and made certain.


Assuming, then that the line of the E. Birdseye
survey gave s certain, fixed and permanent bound
ary to the grant, unable To ercelve why a
call TO adjoin such line or to lnfersecJ u IN subse
quent grant, should not be ecacious for the pur
pose VI fixing tie boundaries Of the latter grant as
if such hne had been actually marked. Ii, in the
given case the unmarked line has all the force and
effect of an actual Inc, for the purpose of fix
ing the boundary Of the grant in the case, upon
what sound principle can it be held not TO have the
like effect in the other?


We caDnotsee the distinction. il any exists


And yet we feel very sensibly the force of the
argument on the other side, and the apparent in
congruity of this position with the principle well
established, upon which the opposing argument
rests And still each principle is equally well es-
tabllshed and the preservation of each seems be
al,t- rha Of n
the community.


1t is not allowable, therefore, to reject either,
merely because in the verbal expression they do
not altogether harmonic. The principle upon
which the charge Of the court Is based, simply
holds the grantee bound by tie calls for course and
distance expressed in his grant, unless he can show
that, by presumed mistake they depart from the
actual boundary lines established by the original
survey on which the grant is founded or that they
vary from the monuments OF boundary called for
in the grant.


Now, can this principle property be held TO ex-
clude as a monument of boundary $50 20 speak,
sufficient to control call for course and distance
the line Of adjoining tract called for, which, in
law, is treated rs equivalent to hne actually
marked


II must be o6strsed that, in such case, al
though tie subsequent inerer mig ght mark the lines
of his own entry 50 fsr as necessary to do So yet
he would not be at liberty to mark the pre-eEisDg
line of the land belonging another, which he CALI
ed to adioiu lie could lawfully do nothing by
way of fixing his boundary, than merely to call
for such line. And j, seems to us that nothing
more can be held necessary; fer it would be an ab
surdity, too grosao receive the sanction Of law, to
say that the same line should be regarded as val
id boundary Of the tract, and not Of the 9TH
er. The principle must, therefore, be understood
in its spirit extending to like The pres
eut And that it hassuOt heretofore been SO gush
fed is well enough TO be explained, the ground
that SO far as Se are informed, the exact state Of
facts calling for such qualification has not hitherto
been presented.


This, like other principles Of Law, must be modi-
fed and expouul5d SO as to adspt il to the new and
varied combinst0ug Of facts that may arise in the
progress of society, ard Of the science Of law. In
the foregoing view, We think ths charge erroneous
Judgment reversed. MCKINNEY.


A true copy: ". Z. CAswELL, Clerk.