
    
      Doe on the demise of ISAAC CLEGG v. JOHN FIELDS.
    The opinion of a surveyor as an expert, is competent to show that certain marks on a tree, claimed as a corner, were corner or line marks.; -but is not admissible to show that it was the corner of a particular grant.
    Where the only question, in an action of ejectment was, whether there was an outstanding title superior to that of the plaintiff, it was Held not to be material for the jury to consider, whether the defendant’s title connected with it or not.
    (The case of Stephens v. West, 6 Jones’ Rep. 49, cited and approved.)
    Action of ejectment, tried before Heath, J., at a Special Term (November, 1859) of Moore Superior Court.
    The plaintiff made out a ease, which, it is admitted, entitled him, jprima facie, to recover according to his lines as laid down in the annexed diagram, 14,15,18, &c. But the defend
    
      
    
    ant claimed under a grant to one Bettis, the land comprised in the quadrangle 14, B, C, D, dated in 1770, and older in date than plaintiff’s claim, which only went back to 1803. The 
      locus in quo is the triangle 17, B, 16, which is common to the conveyances of both parties. There was no evidence that either of the parties, or their predecessors, ever liad actual possession of this lappage until 1856, when the defendant cleared a field on it. The main question, in the case, was as to the location of the Bettis grant. Mr. Say, by profession a surveyor, introduced by the defendant, testified that he had never had the corner tree pointed out to him, but'going to the south side of McLendon’s creek, guided by the description in the grant, he found a tree marked as a corner, with pointers around and to it, and off from this, an old marked line from 14 to B, and thence an old marked line from B to C; that he then did no further actual surveying, but plotted the land according to the course and distance, and laid: it down as represented in the diagram. He stated further, that about ten years ago he went, as a surveyor, to the same tree ; that the marks were then plainer, and the tree just such as that described in the grant. Upon this statement he expressed an opinion, that the grant to Bettis covered the locus in quo. To this opinion the plaintiff’s counsel objected, but the Court admitted the answer of the witness in evidence.
    The Court charged the jury in reference to the testimony of Ray, that his opinion, as that of a man of skill and science, was admitted for the purpose of showihg that the marks upon the tree, claimed as a corner, were corner or line-marks, but not admitted to show, as a question of science, that this was the corner, or these, the lines of Bettis’ grant. The Court informed the jury, that they must determine for themselves whether this tree, claimed as a corner, and these lines, from 14 to B and from B to C, were, in fact, the corner and lines of the Bettis grant, and whether the defendant had satisfied their minds that this grant was so located as to include the trespass; for that as the lessor of the plaintiff liad shown a prima facie case, the burden was on the defendant to show the location of this grant, to entitle him to their verdict. Plaintiff’s counsel excepted.
    The counsel for the plaintiff argued, and asked the Court to charge the jury, that the defendant, not having been in actual possession of the lappage until 1856, had shown no title to the locus in quo.
    
    The Court refused to give this charge, but instructed the jury, that it was immaterial whether the defendant had title or not, provided the Bettis grant had been located to their satisfaction; for that if that grant was located by the defendant, then the possession of the lappage would be in those claiming under Bettis, as having the older title. Plaintiff’s counsel again excepted.
    Verdict and judgment for the defendant. Plaintiff appealed to this Court.
    Person, for the plaintiff.
    Kelly, for the defendant.
   Manly, J.

The record of the trial below, does not disclose any error of which .the plaintiff can justly complain. The opinion, which the surveyor was allowed to express, as to the location of the Bettis grant, would be erroneous, if the jury had not been guarded from considering it for any improper purpose.

The Court informed the jury, that “ the surveyor’s opinion, as that of a man of skill and science, was admitted for the purpose of showing that the marks upon the tree, claimed as a corner, were corner or line-marks, but not admitted to show, as a question of science, that this was the corner or those the lines of the Bettis grant. The Court informed the jury, that they must determine for themselves whether this tree, claimed as a corner, and the two lines, from M to B and from B to C, were, in fact, the corner and the lines of the Bettis grant; and whether the defendant had satisfied their minds that this grant was so located as to include the trespass.” Subject to this modification, the opinion was left to the jury to be considered and weighed by them as other evidence, and for the purpose, thus explained, we think it was legitimate. The matter, embraced in this exception, has been so recently discussed and explained in this Court, in the case of Stephens v. West, 6 Jones’ Rep. 49, that we deem it unnecessary to say more. It will be found by a reference to that case, that the judicial officer, who tried this below, was careful to keep strickly within the limits there assigned to the opinions of a surveyor as an expert. That case being entirely approved, covers the whole ground of the first exception.

With respect to the other, in reference to the instructions asked for and refused, it is obvious, the Court below was correct. It will be observed, that if the Bettis grant were located so as to cover the land in dispute, there would be in those who claimed under him an older, and, therefoi’e, a superior outstanding title, and the plaintiff could not recover, upon a plain principle, governing this form of action. The jury had already been told that the plaintiff had made out a prima facie case, and was entitled to recover, unless the grant to Bettis was located as the defendant contended. It was, therefore, not material whether the defendant had shown title in himself. Upon the hypothesis submitted, he had shown it out of the plaintiff, and that was sufficient to defeat the action. The plaintiff had already had the benefit of all proper instructions in his behalf, and the additional instructions, asked for, were without point, and properly refused.

There is no error, and the judgment must be affirmed.

Per Curiam,

Judgment affirmed.  