
    *Lessee of Samuel Reed v. William Marsh.
    In executing surveys under the laws of the United States, the mere marking a corner by the surveyor establishes no boundary, but such marked corner is controlled by the actual division lines subsequently made, field notes of -which are returned to the proper offices, and preserved according to law.
    This is an action of ejectment reserved from the county of Scioto.
    The defendant is proprietor of fractional section 6, in township 2, of range 21, entered in 1804, by Fullerton and Clapperton, pat•ented to their assignees, Calhouse & Henderson, in 1812, and by them conveyed to him. . ,
    The plaintiff owns five hundred and fourteen acres, from the north side of fractional section 5, in the same township, which was entered by James Stump, April 13, 1813, assigned to the plaintiff and patented to him in 1827. The point in litigation is the line between sections 5 and 6. The corner maintained the defendant is at an elm; the corner claimed by the plaintiff is at a box ■elder.
    By the act of Congress of 1796, Swan’s L. L. 35, the surveyor was directed to cause a survey of the territory, which includes this tract, to be made into townships six miles square, by lines running in the direction of the cardinal points; that alternate townships were to be subdivided into sections by running parallel lines, each way, through them, at distances of two miles; and each intermediate corner to be marked at the distance of one mile. By the statute of 1805, Swan’s L. L. 51, the two-mile blocks, in these townships, were to be subdivided by straight lines, to be run from the corners marked in the first survey to the opposite corresponding corners. The corners marked are declared, by the statute, to be the proper corners of the sections. The boundary lines, actually run and marked, are established as their proper boundary lilies.
    In 1799, a deputy surveyor was sent to survey this district. He fixed the corner of the township, which is the northeast corner of section 5, and proceeded to run the line between townships numbered 2 and 3, which forms the north line of the two fractional sections, Nos. 5 and 6. In making his return to the principal surveyor, he describes a corner set in this line for sections 5' and 6, and likewise for sections 31 and 32, in township No. 3. This is the box elder corner. No line was run between sections 5 and 6, nor between sections 31 and 32, as this was the intermediate line between the exterior lines of the two-mile blocks. Before any further surveys were made, the entry of fractional section No. 6, now held by the defendant, was made in quantity three hundred and forty-five acres.
    *In July, 1805, Denny, another deputy surveyor, was employed to make the subdivisions under the last-cited law. Ho run a random line between sections Nos. 31 and 32, in townships, until it struck the township line; when, finding it fell one hundred and seventy-two poles east of the box elder corner, and left for section No. 6 less than eighty acres, instead of three hundred and forty-five, he suspected error in the position of the corner; and leaving his survey uncompleted, he set no corner posts for the quarter sections, as directed by the statute, but made a memorandum, in his field notes, of a provisional line only. He referred to the surveyor-general for instructions. Some delay seems to have-occurred in this reference, but some time afterward Denny, his assistant, proceeded to complete the survey, and the line commencing on the north side of sections 31 and 32 was run south between them, and was extended over the township line and between sections .Nos. 5 and 6, disregarding the box elder corner, and establishing the elm corner at the point of intersection.
    Evidence was offered by the defendant, tending to show that the box elder was not intended by the surveyor, who made the first survey, to be a section corner, but that it was marked by his party in a drunken frolic, and that it has always borne the name-of “the drunken corner;” that the elm has ever been regarded, in the neighborhood, as the true corner of the sections; the lands adjoining, as well sections 31 and 32, as sections 5 and 6, have-ever been held in conformity with the last survey; that the plaintiff, in conveying the north part of section 5, recites in his deed recited that the elm is the true corner of his land.
    The court instructed the jury that upon these facts the elm was the corner of these sections, and they returned *a verdict for the defendant. -The plaintiff makes this motion for a new trial for-the alleged mistake of the law.
    Mr. Clough and Mr. Scott presented arguments for the-plaintiff.
    Murrhx, on the same side.
    This motion is mainly founded upon a misdirection of the court, to the jury, upon the trial, and involves: 1. A construction of the-act of Congress of May 18, 1796, referred to in the argument of the' Hon. S. E. Yinton and "W. Leonard, for defendant. 2. The-rule of evidence which ought to prevail in questions of boundary of lands, surveyed under the provisions of that act, and some-other subsequent acts of Congress of like import.
    *The miserable condition into which land titles in Yirginia- and Kentucky had been thrown by the loose and vague manner-of making entries and executing surveys, in the early history of the country, whereby the title to lands often rested upon the uncertain memory of individuals, induced Congress, at an early day,, to establish some mode of surveying the public lands, which might obviate these growing evils, and fix, not only a more certain and uniform boundary to lands, but also give to the government purchaser a more safe and permanent evidence of boundary in the records of the county than he before had; and we humbly conceive that a just construction of the act of Congress of May 18, 1796, will not only effect the object, but entitle the plaintiff to a new trial in this case.
    What, then, are its provisions? They are:
    1. That a surveyor-general shall be appointed, with a salary of two thousand dollars per annum.
    2. Field books to be returned by his deputies to his office, and there kept (not expunged). Fair plats to be returned to his office, and there recorded for public information.
    
    3. He shall appoint skillful deputy surveyors, who shall survey the lands, taking an oath, etc.
    4. The surveys to be made as follows:
    1. By north and south lines, run according to the true meridian.
    
    2. By other lines crossing them at right angles, so as to form townships of six miles square.
    3. And that this rule should not be departed from, further than the particular circumstances of interference with rivers, Indian lands, or former surveys might demand.
    4. The corners of townships to be marked with progressive numbers from the beginning.
    5. Each distance of one mile, that is the mile line between' the corners, is to be marked different from the corner.
    6. To be subdivided into sections of six hundred and forty acres, or nearly so, by parallel lines from each two-mile corner, marking a corner on the parallel lines at the end of each mile.
    7. And particularly, the sections are to be numbered.
    8. Witness trees, near each corner, to be distinctly marked, showing the number of section and number of township.
    9. Field books to show the description of corner tree, and its number.
    10. All lines to be plainly marked.
    *The surveys thus executed, and the field books, shall be returned to the office of the surveyor-general, for the use and information of the public. But, according to the opinion of our antagonist counsel, these records are of no use, and give no certain information whatever.
    Have we not a right to infer, from the great particularity of this act, that the national legislature intended to give a higher validity and more unquestionable authority to these vouchers, field books, and records, when thus executed, and returned by sworn officers of the law, than can be given in courts of law to the uncertain memory of individuals?
    Is it not an alarming departure from the settled doctrine of courts of justice, to insist upon impeaching such public documents and records, made and kept by the sworn officers of the law, in strict conformity with their duty, by evidence of facts existing merely in parol, or by the acts of individuals not acting under the .solemn sanction of the law?
    May we not ask this honorable court to review the decision made by them, when refusing to charge the jury, that these solemn acts of record were the only legal evidence of title, not to be impeached by any act of any officer not acting under like solemn sanctions.
    After the survey was made by Langham, under and in pursuance of the law of Congress of 1796, and after this survey had been returned, with the field books, and made, by the express provisions of the act, matter of record, upon which the subdivisions were thereafter to be made, what authority bad the surveyor-general under that, or any subsequent act of Congress, to alter, or authorize others to alter, these corners and lines so made, established, and returned? Does the act of 1805 give this authority? It is contended that it does.
    That act, so far from authorizing the surveyor-general or his deputies, to alter, amend, or abolish any one of the corners, or lines, made and returned under the act of 1796, positively recites what has been done under that act, and that recitation amounts to a legislative affirmation of the survey and corner in dispute. Mark the language of that act: “The surveyor-general shall cause all lands north of the river Ohio, which had been surveyed under the act of 1796, and were subdivided by running parallel lines through the townships, each way, at the end of every two miles, and by marking a corner on the lines at the end of each mile, to be subdivided into sections.” Now, it is 'J'plain, from this act, that if the land in dispute, and the contested corner, the box elder, had not been surveyed and fixed, before the passage of -this act, the surveyor-general could derive no authority to subdivide it under this act; i. e., if this land had not been previously run off by Langham, or some one else, as directed in the act of 1796, how could the surveyor-general have subdivided it under this act? Does not this act of 1805, by its very terms, refer to the survey made by Langdon, upon which we rely as conclusive evidence of our right? Is it not an express ■legislative recognition of this survey, under which we claim? Does it not, expressly confine the subsequent action of the surveyor general, and his deputies, to a mere subdivision of the larger lots? Does it authorize him, of his deputy, to resurvey the larger divisions ? Does it authorize them to remove, alter, or amend the lines or corners before made? Does this act not expressly say, -that in making the subdivisions, the surveyor shall make the subdivisions by running straight lines from the corners before made? This box elder, it will be recollected, is not only a mile corner, but also a center corner for four sections; that is, it is not only a section, but a corner to four sections, made by Langham, between 31,32, and 5 and 6. The survey made by Langham, under the act of 1796, would have been incomplete without this box elder corner. This box elder corner was made and returned byLaugham, under the act of 1796; he was a sworn officer of the law, for that purpose appointed; and this survey made by him, and this box elder corner made by him, are returned and recorded as required by that act; and the act of 1805, passed by Congress, with these records and returns before them, is recognized in the act of 1805, referred to in express terms of recognition; and so far as the ■corners made by Langham are concerned, they are designated expressly as the points from and to which the subsequent surveyor shall start and run.
    If the exact quantity, in each section, is to be a rule of evidence in determining the boundary, he is right; but surely he is not .serious in this pointed reference.
    If, then, the act of 1805, gave no authority to the surveyor general to alter the corners made by Langham, the court erred in refusing to give the instructions asked for by plaintiff’s counsel.
    But it is contended that this box elder corner varies some one ■or two hundred poles from the true line. Such is not the case, from the evidence, unless it is meant that the course gives the true line. The true line is the line made and marked by *Lang-ham, and this corner is in that line. It is not, therefore, variant from the true line as marked out, however it may vary from the true course of the compass or meridian.
    But, says one of the counsel, this “box elder” is the “drunken corner,” as appealing to the legal bench. It was always called the “ drunken corner.” Well, be it so. Call it what you will, it is the-“box elder” corner made by Langham, as the true corner, returned and recorded, and specially referred to with all other mile corners, in the act of 1805, by which the subsequent surveyors were to be governed in subdividing the land into sections. They shall, says the act, run from corner to corner; but it is urged that-inasmuch as the subsequent surveyor, under the act of 1805, chose not to be governed by the act, the statute law of the land is made-void, and the act of the surveyor, done in contravention of the-law, is good and binding.
    Again, it is said, the “box elder” corner was not made by Langham, the surveyor, but by his party, while in a drunken frolic; and such is the parol evidence by which the records orderedT by act of Congress to be kept for public information, as evidence of our right to freehold estates, are to be expunged and made of no-avail in courts of law. Such a doctrine would set the whole land at variance, and unsettle every title in the country.
    If it be true, as is metaphysically contended, that the acts of all the different surveyors, on one tract of land, constitute the survey, “ that the survey is the ‘whole thing,’ of which the surveyors are the parts, yet this does not prove that the record of their acts, or the record of the Í whole thing ’ is to be vacated by the acts of the parts; and what is worse still, by the parol evidence of those acts, in contravention of the record of their acts, or the record of the‘whole thing.’”
    Counsel admits that the object of the act of 1796, was to close-the door against questions of boundary ; but in order to open the door again, he would have us believe that the act of 1805 was passed to authorize the surveyors to amend all former lines and corners, if they thought proper, and so to execute the work as to vary from the former records, and let in parol proof of what was,, or what was not, the true corner of any given township, section,, or quarter section ; and such is the effect of the positions now assumed for the defendant by his learned counsel.
    But the great mistake of the learned counsel, in his commentary upon the act of 1805, seems to consist in this — when that *act directs the surveyor general to cause the lines subdividing the townships and sections to be run from one corner to the other corresponding corner, he forgets, or seems to forget, that these corners, mentioned in the act, refer expressly to the corners-made by Langham, and, consequently, to the “ box elder,” and argues that as the line was to be run, ergo a new corner was also to be made — that if the course of the compass, set under the act of 1805, did not hit the corner set up and marked under the act-of 1796, ergo a new corner was to be made, and hence the counsel charges that plaintiff asks the court to establish a line which was-never run. Now, the plaintiff asks the court no such thing; we-ask the court to establish the corner, not the line. We say the-court has nothing to do with the line; that the law made the-corner the permanent object, which was in all future ages to determine the line; that the corners, being fixed by the record, cannot be moved by parol; and that the act of 1805 only gave authority to run from corner to corner — not to demolish old corners made-under the act of 1796.
    We admit that the court has no power to make a record, nor-have they any power to make a corner which was never made and recorded; much less have they authority to receive parol evidence-to vary and contradict the record of the “ box elder ” corner made by the surveyor, under the act of 1796, in May, 1799.
    The case cited from Judge Wright’s reports can give no support to the position assumed by the. counsel for defendant; that case related only to the subdivisions of former surveys, and the-lines and corners, as between these subdivisions made under the-act of 1805, is a very different question from the one under consideration. We show a complete record of a corner fixed by the act-of 1796, surveyed in 1799, and entered before the passage of the act of 1805. Our corner, viz: the “ box elder,” was made, returned, and recorded by the authorized officer of the law, acting under-oath, and we show the record thereof made and kept for public use; we show our survey of the land prior to the act of 1805, and we-contend that the court erred in not charging the jury, as requested, upon this evidence of record. We rely that the act of 1805 gave no authority to alter the corners made, returned, and recorded under the act of 1796; but, on the contrary, that the act-of 1805 expressly recognized these corners, and we say that no parol evidence is admissible to vary the record of the corner so-established, or change the corner by any line or lines which may have been run; that parol evidence of *a line actually run, variant'from the record corner, is wholly inadmissible, and, if ad•mitted, would work incalculable mischief in this country, and would, moreover, defeat the admitted object of the act of 1796, .and 1805 also; that the whole policy of the law is against the pretensions set up by defendant’s counsel, and that his pretended record of a line” is visionary and vain; that there is no such •thing contemplated in either act of Congress as the “record of a line;” that no line trees are recorded or named in any part of the returns made by the surveyors, nor does the law require it; that the law only requires corner trees and witness, trees to be ■noted and marked, returned and recorded; and that if a line tree, or trees, were recorded, it could avail nothing, as the law re•quires the lines to run from corner to corner. Nor does the patent or grant contain the line or lines of the land; it designates the ground granted as a section, or quarter section, and these sections, or quarter sections, are determined by the corners, marked ■and recorded, and not by the real or imaginary lines.
    Mr. Yinton submitted an argument for the defendant.
    Leonard, on the same side:
    • The reasons assigned for a new trial in this case are all alleged errors of the court, in allowing illegal testimony to go to the jury, •or refusing to instruct or improperly instructing the jury.
    In the first place, I shall not admit that the reasons assigned •specify exactly, or embrace completely, all the facts that were •disclosed on the trial, and I wish to make a particular application of the remark to the second, third, and fourth assignments of reasons.
    I'submit to the judges before whom the trial was had — to their recollection or notes of the trial — the matters of fact on which 'these reasons are founded; as, also, whether these were the questions of difficulty reserved, or intended to be reserved. And •I submit to the whole court, without comment, whether they ■furnish sufficient grounds for a new trial.
    In proceeding, in the next place, to the principal question — the only one, in truth, that was reserved — I observe that the argument of the opening counsel mistakes the case. This is not now •a question of fact where the line was actually run, or where the corner was made, but a question of law, substantially amounting to this: "Which is the true line between sections Nos. 5 and 6 — the line actually *run under the law of 1805, or a line to be run from the “ box elder,” communiter dictus, drunken, corner?
    The decision of this question depends upon the construction of the acts of Congress, and more especially upon three several acts-to be found in Clarke’s Land Laws, No. 71, p. 420, act of May 18r. 1796; No. 107, p. 495, March 26, 1804; No. Ill, p. 515, February 11, 1805.
    The last act is the most material, its first section having given rise to the present difficulty. This section, reciting the surveying under the act of May 18,1796 (No. 71), into two-mile blocks, by the running of lines, and the marking of corners at the end of every mile, provides for the running of lines from the mile corners thus marked. Admitting, for the present controversy, that the box elder corner was marked under the act of May 18, 1796 (No. 71)r and the line was run from the elm corner, as claimed by the defendant, under the act of February 11, 1805 (No. Ill), which governs, the corner marked, or the line ran?
    Whether the three principles or rules of the act of 1805, for ascertaining the boundaries of the public lands, are to be taken-altogether prospectively, or not, is immaterial, and a question I do not choose to make. Indeed, I do, for the purposes of the present question, cheerfully concede, that where, in the first and second rules, it is provided that “ the ■ corners, marked in the surveys, returned,” etc., and “ the boundary lines actually run and marked in the-surveys, returned,” etc., these provisions or rules only apply to corners and lines antecedently made; for instance, in the present, case, the first rule applies to the box elder corner. But the second rule, which, while it establishes the lines actually run, directs-others to be run; for instance, the line claimed by defendant surely as much establishes the line thereafter to be run (to wit: the defendant’s line), as a boundary, as theline previously surveyed and returned, or as the corner made.
    Suppose the defendant's line had been one of the lines of the two-mile blocks, and run before the act of 1805, but the corner had been found off the line a hundred poles; the first and second rules would have confirmed both the corner and the line. Indeed, they would have stood in no need of confirmation. The act of May 18, 1796, would of itself, without the aid of these rules, have established the same boundaries, and received the same construction, as the rules themselves. And the rules only confirm tha< •previously made lines and corners, and are directory to the sur•veyor as to the manner of completing the surveying, authorized *by section 1 of the same act of February 11, 1805. But suppose the case put, of a line of the two-mil.e blocks, and a corner off the line, both made previously to the act of 1805, and both confirmed by the first and second rules, would the corner control the line, or the line the corner ? A corner is no boundary; it is only a terminus of a boundary. It is a point. It has no length •or breadth. A line is a boundary to a superficies. If without breadth, it has length. I.t is more labor to make a line than a •corner. It has more marks. It is more easily found and identified. Should you establish the corner in preference to the line, where are you to go ? The corner gives you no boundary. You must run an imaginary line, wh'en you have an actual line which the law establishes ; you sacrifice a line to a point, the major to the ■minor. If you establish the line in preference to the corner, your work is complete, the business is done, the boundary is entirely ascertained; whereas, should you establish the corner in preference to the line, you have no boundary, you only have a terminus; the other terminus is to be ascertained, and a line to be measured or ascertained between the termini.
    
    But is the case altered by the fact, that the box elder corner was made under the law of 1706, and the line run under the act ■of 1805; or, because the law of 1805 directs the line to be run from the corners made under the law of 1796 ? It would be trifling with the co,urt to say much in answer to tho first query. The validity of a law does not depend upon its priority, or posteriority •of date; nor does the validity of an act, done under a law. Indeed, if there is any preference in this respect, it is in favor of the last law, and the act done under it. But I suppose acts in pari ■materia are to be construed together as parts of one code, as one statute.
    As to the second query: What was the object of the act of 1805? Mile corners had been marked, but mile lines not run, .and the law directs them1 to be run. Congress was not satisfied that the public lands should be sold by an imaginary line, to be run from a marked corner. Congress required the line to be ■surveyed, and directed the manner in which it should be surveyed, its termini, etc. And now, for what purpose? For the purpose •of bounding or selling the land by an imaginary line, to be run from the corners antecedently marked, pray? This could have “been done under the former laws. Mo, I mistake, not after the act of March 26, 1804. No. 107, p. 495. By section 13 (p. 501), every section, and its subdivisions, is to be surveyed, and the *lines marked (the fees to be paid by the purchaser), by a deputy surveyor, before the issuing of a final certificate. Before the last act, Congress sold by corners and imaginary lines. What was the evil, under the former laws, which Congress, by section 13 of the act of 1804, and especially the act of 1805, designed to remedy? It was the selling by corners and imaginary lines. And what was the remedy? The actual marking and running the lines. And shall we make the remedy nugatory, worse than the disease, in case of a conflict between the line and corner? Shall the court invalidate the last act under the law, the act of the officer appointed by the law to ascertain and determine the corners and run the lines from them ? Shall the court thrust out and substitute itself in place of the officer, revise his decision as to the corner, reverse the line he has run, and’ reintroduce the mischiefs the act of Congress remedies — the mischief of a sale by corners and imaginary lines ?
    The object of the legislature, in passing the present law, is plain. Corner marks might be effaced, the trees cut down ; there is always great difficulty in finding them; imaginary lines are not clear, distinct, or safe and convenient boundaries between occupants. To provide a remedy for these inconveniences, the legislature provide that the actual lines shall be run. They are run; but in running them, the officer does not comply with the law; he does not run due north or south ; he does not run a straight line between the corners; he does not begin at the corner marked ; all which he is required to do, by the act of 1805; therefore, says the plaintiff, his acts are void, and you are thrown back upon the corners and marks, and imaginary lines, of the law of 1796. The same argument would apply to the proceedings under the act of 1796; and instead of being governed by the survey as made, we should be governed by the survey as it ought to be made.
    The argument, when pushed to its logical consequence, has this extent; it shows the act of Congress of 1805 nugatory, as it insists we are not to be governed by what was actually done under it, but by what ought to have been done. That is, it insists we are not to be governed by the line actually run, but by an imaginary line to be run from, the marked corners, which is exactly the-boundary, and rule to govern, before the passage of the act. I in- - sist that wherever a section line is run, under the act of 1805, the argument of the gentleman places the parties in the same situation as if it had not been run, and as if the act had never passed. The case must be governed, he says, by the corners and *an imaginary line. Such was the law; but I submit whether the act of 1805 is not annulled pro tanto by this construction.
   Judge Lane

delivered the opinion of the court:

The question arising upon these facts is, whether a.corner set in a survey, made under the act of 1796, is so absolutely unalterable, that a subsequent surveyor is bound to adopt it, however erroneous, as an element of later subdivisions, or whether, in Case' the lines of subdivision are so run as to correct the mistake, and the survey and field notes are deposited in the proper office, a-. subsequent purchaser may disregard the completed survey, and extend his boundaries beyond the lines run to the first established^ corner. If the affirmative of these' propositions be maintained,, the defendant will lose two hundred and fifty-two acres of land,, lying on the Scioto bottom, from the three hundred and forty-five acres which he purchased, and the plaintiff will recover two hundred and fourteen acres for which he never paid.

If instruments were perfect, and surveyors entirely skillful, the law which directs corners to be set at prescribed distances, and connected by straight lines of subdivision, might be easily obeyed but so many causes of error attend geodetical operations, that no-minute accuracy, or exact correspondence in the work of different agents, is attainable by any ordinary pains. To prevent disputes,., therefore, it has been a governing principle in the disposition of public lands, since 1796, that surveys, to define the limits and ascertain the quantity of lots, shall be made by officers of the-United Slates, and taken to be correct. As deeds are defined by lines, not by points, corners do not make the boundaries of surveys, although they form the termination and give direction to-the boundary lines. These lines must be run; no survey is complete without them. The statute of 1805 refers to them as necessary parts of'these surveys, and lots can not be identified without reference to the records of these lines, kept in the office of the-surveyor general “for public information ” (Swan’s Land Laws,. 36), or as transmitted to the register by him. It is this actual line which binds purchasers, and to determine this settles the boundaries of lots. This doctrine has beon often before the court. Two cases are reported, and another in Champaign county is recollected, recognizing the principle. Wright, 599, 634.

If a mistaken line may be corrected, so may an erroneous corner. If the plaintiff may insist on amending the errors of Denny, the defendant, with equal justice, may correct the mistake of the first survey, by placing the corner at the prescribed distance. *But all these questions are precluded, when the proof shows no line was actually run between these sections with an intention of marking boundaries, except that which adopts the elm corner. The rule is, in truth, a rule of peace, and' is especially applicable to a purchase subsequent, and in reference to a line run, where the purchaser has obtained all he contracted to buy.

Motion for new trial overruled.

Judgment for defendants.

Note. — In the statement of this case, page 148, at the end of the first paragraph, the following facts were omitted:

“ITield notes of this survey were duly returned to the surveyor-general, and by him transmitted to the register of the district, and are the only field notes showing a line run between these sections.”  