
    Lewisburg
    
      Smith v. Davis.
    (Absent Brooke, J.)
    1847. July Term
    
    Commissioners are appointed to divide a tract of land between the joint owners. They fix the corners of the dividing line, and intend that the division shall be by a straight line from one -of these corners to the other: and the line is so described in their report, and so laid down on the plat which they return to the Court. In fact, however, the land being covered with a thick wood, the line which they mark is not straight. In cross actions of ejectment and trespass between the owners of the two tracts. Held : The line as it was intended to be, and not the marked line, is the true division line.
    These were first, an action of trespass quare clausum fregit by Davis v. Smith, and second, an ejectment by Smith v. Davis, in the Circuit Court of Botetourt county; and the only question in dispute was which was the true division line between their respective tracts of land. Both tracts had been parcel of a larger tract owned by James M’Crery in his lifetime, and which was divided by commissioners among his heirs, after his death. Davis claimed by purchase from one of the heirs, and Smith had married another.
    Both the corner trees of this division line were standing, and claimed as the true corners by both parties ;
    
      and the commissioners intended the dividing line should be a straight line, and directed the surveyor so to run it ; but the land being covered with a thick wood, the surveyor without intending it, ran and marked a curved line, so as to throw into the tract owned by Davis, near five acres of land, which if the line had been run straight, would have belonged to Smith’s tract.
    After the division line had been thus run and marked, the person under whom Davis claimed built a fence along it, which had remained there about eight or ten years; but Smith having had the lino run by a surveyor, and thus ascertained the fact that the marked line was not a straight line, he shortly thereafter removed the fence from the curved to the straight line, but putting it on his side of the straight line. Davis thereupon brought this suit, and Smith then brought his.
    The causes were tried together, and on the trial Smith moved the Court to instruct the jury “ that if they believed from the evidence that the commissioners who divided the land intended to run the said division line as a straight line between the two ascertained corners, then a straight line was the true division line between these parties, unless the jury should believe from the evidence, that the wife of said Smith agreed to the running of the crooked line ; and she and her husband the said Smith, had acquiesced in said crooked line as the true division line between them and the said Davis, or the person under whom he claimed, for fifteen years before the ejectment was brought.” The Court refused to give this instruction ; and instructed the jury, that if the division line was actually run and marked at the time the division of the land was made between the heirs of James M’Crery deceased, and that the line then marked was the crooked line laid down on the plat returned by the surveyor, then they ought to find for Davis, although the call of the plat and report of the commissioners who made the partition, may bo for a straight division line. The jury found a verdict for Davis in his action of trespass, and for Smith in his ejectment; whereupon the Court refused to set aside the first, but. set aside the second verdict; and Smith having excepted to the opinion of the Court, applied to this Court for a supersedeas, which was granted.
    
      John T. Anderson, for the appellant,
    referred to Dogan v. Seekright, 4 Hen. & Munf. 125, to shew that the straight line was the true line.
    
      Eskridge, for the appellee,
    insisted that the marked line must be taken as the true line ; and for this he referred to Shaw & als. v. Clements, 1 Call 429; Baker
   Allen, J.

delivered the opinion of the Court.

It seems to the Court here, that the Circuit Superior Court erred in refusing to give the instruction to the jury asked for by the plaintiff in error, and in giving the instruction which it did give. Therefore, the judgment is reversed with costs, the verdict and judgment is set aside, and the cause remanded for a new trial of the issue joined.  