Note. — Vide the case of Cherry v. Slade’s Adm’r. 3 Murph. 82, in which the Chief-,lu.,tice maltes an abb r. view of all the cases apon this subject, and from which he deduces four rules relative to boundary. 1st. Th-,t whenever a natural boundary is called for, in a patent or deed, the line is to terminate at it, however wide of the couise called for, it may be ; or however short or beyond the distance specified. 2d. Whenever it can be proved that there was a line actually run by the survey or, was marked and a corner made, the party claiming under the patent or deed, shall hold accordingly, notwithstanding a mistaken descript on of the land in the patent or deed. 3d. Where the tines or courses of an adjoining tract are called for in a deed or patent, the lines shall be extended- to them, without regard to distance, provided those lines and courses be sufficiently established, and no other departure be permitted from the words of the patent or deed, than such as necessity enforces, or a true construction renders necessary. 4th. Where there are no natural boundaries called for, no marked trees or corners to be found, nor the places where they once st md ascertained and identified by evidence: or where no lines or courses of an adjacent tract are called for ; in all such cases, we are of necessity, confined to the courses and distances described in the patent or deed Vide also, Reddick and Wife v. Leggat, 3 Murph. 539. Orbison v. Morrison, Ibid. 551. Campbell v. McArthur, 2 Hawks, 33. Slade v. Green, Ibid. 218. Tatum v. Sawyer, Ibid. 296. Fruit v. Brower, Ibid. 337. Haughton & Slade v. Ruscoe & Gray, 3 Hawks, 21. McNiell v Massey, Ibid. 91. Tatum & Baxter v, Paine & Sawyer, 4 Hawks, 64.
Bradford v. Hill, 2 N.C. 30, 1 Hayw. 30 (1793)
HALIFAX,
OCTOBER TERM, 1793.
Bradford v. Hill.
la the case of boundaries expressed in deeds and patents, the courses and distances mentioned in such deeds or patents, must be observed, except when a natural boundary is called for and shown, or when marked lines and corners can be proved to have been made at the original survey.
Ejectment. The boundaries expressed in the deed to Bustin, under whom Hill claimed, were — Beginning on Fishing creek, thence east 320 poles to Pollock’s corner, thence north same number of poles to Bryant’s, thence' along Bryant’s line west 320 poles to the creek: Bryant’s corner being four degrees to the east of north from Pollock’s corrref?*fhe line from Pollock’s corner intersected Bryant’s line considerably to the west of Bryant’s coiner. It was proven there was an old marked line, leading from Pollock’s to Bryant’s corner, but that in miming by the compass from Pollock’s corner north 54 degrees east, which was the general course of that line, the marked line would be sometimes on one side, sometimes on the other side of that run by the compass } whence it was taken by the jury, to have been run by some person after the survey $ the triangle .formed by the said north line, part of Bryant’s line, and a line from Pollock’s corner to Bryant’s corner, included the land in dispute. It was insisted for the Plaintiff, that the expression of tiie word north was a mistake in the survey- or, as the line would give but about half the. complement of arres ; that it would not measure the distance called for by the deed, as it would intersect Bryant’s line before the distance was gained, and because from the point of its intersection with Bryant’s line, along Bryant’s line to the creek, would he only 130 poles ; whereas, the deed called for the whole length of Bryant’s line, to wit, 320 poles. Add to this, that the true grammatical construction of the words used in the patent, to Pollock’s corner, thence to Bryant’s, will determine the sense to Bryant’s corner, not to Bryant’s line, there being no line antecedently mentioned. E Contra, it was argued by Davie, and agreed to by Judge Wimams, that in all cases where there are no natural boundaries called for, the dispute must be decided by course and distance, or by proving the line and corner: that supposing the marked line running from Pollock’s to Bryant’s corner, not to be the line run by the surveyor, there was nothing *31blit the description of the deed by courses and distances( to direct us : that indeed, if the Hue ivas terminated by a natural boundary, then if tiie distance, expressed in the deed was shorter than the distance to that natural boun*, dary, tiie distance expressed in the deed would be disregarded. It is true, mistakes have been committed by surveyors, but on account of the great danger there would be, of controlling deeds by parol testimony, they must be adhered to, unless in cases of very obvious mistake, and where the evidence of tiie mistake is of a nature hardly capable of deceiving us — as where there was a line, and marked, trees, and a corner, which could be proven to be the line run by the surveyor; in which case the mistake should not. prejudice, for there would bo not only parol evidence to control tiie deed, but"the additional evide.nce also of tiie marked line and corners where nature itself would lend its aid to evince the error by the appearance of the line and in proving its age.
In this case, the cases of Branch and Ward, of Eaton and Person, and of Person and Roundtree, were cited,— The case of Branch and Ward was said to be this — Beginning on tiie creek, and running north and so round to tiie creek, and along that to the beginning ; but expressed in the patent to be beginning on the creek, thence running south and so round to the creek, whereby the land was thrown upon the opposite side of the. creek; but that it was proven on the trial, that there was a north line, and a corner marked at the termination of it, the. same that was mentioned in the patent; that the line was old enough to have been made when the land was first surveyed, and that was tiie line run for the paten-tee by the surveyor. Upon which evidence the Plaintiff recovered. Eaton and Person was — that the land in fact was included in a first, second and third line, and a river for the fourth ; but the deed, after describing the first line, called next for a course and distance which carried the second line through the body of tiie land, leaving out a triangular piece included in the second and tliird lines really run ; but the second apd third lines really run, were marked and proven, add tiie corners also, by persons present at the running them for the pa-tentee: and upon that, by direction of tiie Court, the claimant under the patentee recovered. Person and RoundtreeK it was said was a similar case to the last, but that these were the only cases where the Court had ever *32ventured to depart from the letter of the deed or patent; and the claimant under the patentee in the present case, not being able to prove a line run by the surveyor for the patentee, between these two corners, the jury, under the direction of Judge Wiilums, then the only Judge in Court, found verdict against him. I'be oilier party claimed tin- triangular piece in dispute, by a State grant of a late date.