From Randolph.
A tract of land is granted in 1761. In 1784, another tract adjacent u granted, and calls for a course “ along the old Une to the beginning.” In 1794 a corner and line are marked, as tlie corner and line of the tract of 1784, parallel to the old Una, and North of it. Held, that the 3inmarked in 1794 was not conclusive; that it was the province of the Jury to ascertain the true boundary, and that, if they believed it to be «the old line,” the Plaintiff would go to it, notwithstanding she corner and line marked in 1794 as his line.
Trespass quart clausum fregit. Pleas General issue— Zil>. ten. — Slat Lira. — License.
The Plaintiff claimed the lands described in the annexed Diagram, by the lines Á. II. G. E. The Defendant claimed those described by the lines K. 13» D. O. L. R. S. T $ and the question in dispute as to boundary was. Whether the Plaintiff’s tract was bounded oa the North by the line IL D. or A. E ?
*338DIAGRAM.
The tract marked M. was granted to John McGee in 1761t, that marked P. was granted to Thomas Will-born in 17611 and that marked N. was granted to„Esther Willborn in 1784. Esther Willborn conveyed N. to James Fruit in 1794, and James Fruit conveyed to the Plaintiff.
The grant to Esther Willborn was as follows: “ beginning at a stake, the corner of a tract she now lives on” (she then lived on P.) “and running North along McGee’s line 80 poles to a black oak, then East 100 poles to a small black jack, then South 80 poles to a black oak corner, then West along the said old line 100 poles to the beginning.” The Plaintiff alleged that the beginning was at a stake at C, and that the Mack oak called for as a corner to the third line, was at F. The *339Defendant insisted the beginning was at a stake at, 33, and that the black oak called for in the third line, was at I).
The grant to Thomas Willhorn, under whom the Defend ant claimed, was as follows : “ beginning at a black oak saplin ,” (at D, as Defendant said,) “ then ranning South 61 chains to a white oak, (0) then West 28 poles to a red oak, York’s corner, then west 6¿ poles to a white oak, (L) thence North 82^ chains to a white oak, (E) then West 10 chains to a hickory bush, (S) then North 19 chains to a white oak on McGee’s line, (T) then along Ms line East 20 chains to a hickory, (K) then along Ms line North 10 chains to a stake, (B. as .Defendant contended, and C. according to Plaintiff’s allegation) then, East 25 chains to the beginning.”
As to the line C. F. it appeared that there were marked trees on it, two of which, as the surveyors judged from their external appearance only, might he as old as. the year 1761. The other trees on this line were of the same age with the trees on the lines A. E. and B. B, both of which were marked. It was not shewn on the trial who marked C. F, or for what purpose it was done.
As to the line A. E. It appeared that in the year 1797, the year after the Defendant purchased the tract P, Fruit, the Plaintiff) and himself, erected a stone at A. for the beginning of the land which Fruit had purchased ©1‘ Esther Willhorn j that there were on the line A. E, marked trees corresponding- in age with Fruit’s deed j that Brower acquiesced in the corner A. and the line A. 33. as Fruit’s boundary until the year 18 — when Fruit had his land processioned j after which Brower beginning at K. and running North along- McGee’s line, discovered that the stone erected at A. was short of 10 poles, the distance called for in Thomas Willborn’s grant, hut that the distance terminated at B. and Brower thenceforward claimed to B. it was cot shewn why, or by whom this line was marked.
*340As to the line JS. D. Defendant called a witness, Joues¿ w^° s^&et^ that *’nt' fifty-three years, he had lived in the neighborhood and heard the black oak at i>. called Thomas Willborn’s corner ¿ 1bat when he first knew it, it was a small sapun, and the marks were then visible, hut that as it grew In size the marks disappeared, lie further stated, that in 1794, on the purchase by Fruit from Esther Willborn, Elliot, who had been for many years surveyor of Randolph, surveyed the land in Fruit’s presence, and then stopped at D. as Thomas Willborn’s corner -, the old marks upon the black oak at D. had not then disappeared j Elliot marked it then as Fruit’s corner, and also marked several dogwood trees as pointers, and running thence West to a stake at B. marked the line B. B. The pointers, it appeared, were still standing, and the lino B. D. corresponded in age with Elliot’s survey and Fruit’s deed.
As to the cerner at B. it appeared in opposition to the testimony of Jones, that the tree having been broken down by a storm, the heart for about an inch in diameter was retten, and that the lamina or annual growths from the rotten part, counted in 1822, forty-nine — that this tree was marked as the corner of Thomas Willborn’s, and not cl Esther W iliborn’s tract, in the same year with the lines B. D. and A. E. and most of the trees on C. F.
On these ibas the Defendant contended, 1st, that the evidence proved the line B. B. to be Thomas Willborn’s line — and 2d, that if the evidence left the locality of Thomas Wiliborn'S line doubtful, yet the Plaintiff could not claim farther south than the Une B. B. as that line, and the corner ai D. were marked as his line and coiner when Esther W iliborn conveyed to him. That although the grout to Esther Willborn and the dee'! to Fruit, called for this line as running from the black oak cerner iJ along Iks said old litis West to a stake in MeG-ee’s line-, yot it did not appear either from the grant 0; from her deed, that the said old line was Thob; Willborn’s line, inasmuch us Ms line had not been previously men-*341uoned in the grant or deed, nor any old line except Me-Gee’s line.
The Court instructed the Jury, that if from all the evidence, they believed that Thomas Will born's line was to the South of the line B. D, the Plaintiff was entitled to hold to his line, and the line from G. South was to be extended to it, notwithstanding the corner D. and the line B. Í). were marked as his corner and line. Verdict for Plaintiff — new trial refused — -judgment and appeal-
There was much conflicting evidence in this case, relative to where the old line was, of which it was the province of the Jury to judge. The Court instructed the Jury that iiie Plaintiff’s boundary extended to Thomas Willborn’s line wherever that was, notwithstanding that the corner D. and the line B. D. were marked as his corner and line.
This is in conformity with the case of Blount v. Benbury — (2 Hayw. 354) and many other cases that have* Arisen. A new trial is refused.