
    Gideon Evans vs. Thornton Corley.
    Elat annexed to an old grant, located by the plat distance, though a river close by called for as a boundary was not reached.
    BEFORE WITHERS, J., AT BARNWELL, FALL TERM, 1855.
    The report of his Honor the presiding Judge is as follows :
    “ The general character of this case is familiar to the Appeal Court under the name of Gideon Uvans vs. William Weeks. The question now, as it was heretofore, turns upon the location of a grant to Minor, and this location, by consent of all parties depended, in an eminent degree, upon ascertaining what road was delineated on Minor’s plat as the road to ‘ Pine Log’— and what road the grant referred to, in language, (the plat did not make such reference in words of description) where it described the land of Minor’s grant to be ‘ on both sides of the rpad to Pine Log.’ The controlling question on this trial was, (and so was it treated on both sides,) Did Minor’s plat and grant refer to ‘ the old Tory trail,’ as witnesses called it, or to ‘ the White Pond road,’ as represented on plat of resurvey used in the trial? We had testimony on this occasion, not heard before, touching this enquiry. The plats of résurvey represented a public highway, leading from Augusta to Columbia, as crossing the Pine Log point on Edisto river, and traversing the tract of land in question somewhat from east to west, and that road existed when Minor’s plat was made. I said to the jury this, in regard to that road.: That it had once occurred to me that the language on the grant ‘ on both sides of the road to Pine Log,’ might have been intended to refer to the said public highway — for if it did, the words of description above cited, would be fulfilled, since the land did, in fact, lie on both sides of that road, and that road did lead to and across Pine Log. But upon discovering that the surveyor of Minor made no representation of the said public highway, but represented ‘ the road to Pine Log’ as shown on his plat to traverse the land in quite a different direction, I thought the better opinion was, that the public highway was not in the mind of the surveyor of Minor but some other road was, having the name of the road to Pine Log. Nor was this mere surmise put before the jury for the first time in my charge, but was suggested in the course of the argument, as a topic to be considered or not by both sides. It had no prominence in the case at all; I placed no reliance upon it, nor have I any reason to suspect, that it had the slightest influence upon the jury’s verdict. I suppose it will scarcely be denied, however, that if the public highway was the road referred to in the grant, the location now urged for the plaintiff would, in deed and in truth, derive no support'from the words ‘on both sides of the road to Pine Log.’ As to the deed and plat (the latter by Buckhalter,) from German to Evans, in 1831, they were before the jury for whatever they were worth, The case rested, was understood, I thought by both sides, and said by both sides to rest, upon the true location of Minor’s grant — and if Buckhalter’s plat, which was wholly ex parte, deserved any influence upon that question, the plaintiff had the benefit of it. That thei said plat ‘was sufficient, of itself, to entitle the plaintiff to recover,’ is a matter that I have no remarks to make upon, as I know not upon what grounds that opinion rests.
    “ The jury found for the defendant.”
    The plaintiff appealed and now moved this Court for a new trial, on the grounds:
    1. Because his Honor charged the jury in substance as follows: “ There is a road running through-the plat, called the road from Augusta and Hamburg to Pine Log Bridge, if the surveyor meant this road, then the description in the grant, “ on both sides of the road to Pine Log,” is complied with. If this be so, the principle adopted by Mr. Barrillon, in running a line from plat distance across to Johnson’s land, and thence along said line to its termination at Edisto River, is correct. The question then would be, how shall the lines be closed ? And the correct mode would be to run a line from the point on Edisto at the termination of Johnson’s line, to the point on the southern line, at the termination of plat distance, which would exclude the trespass and the verdict must be for the defendant.” Which charge, it is respectfully submitted, is error, and although other facts were submitted, still the conclusion of the jury may have been attained by adopting this mode of location.
    2. Because the deed from German to plaintiff, dated 26th February, 1831, with a plat annexed, covering the location contended for, was sufficient of itself, to determine the location; and was also sufficient of itself to entitle the plaintiff to recover.
    3. Because "the verdict is contrary to law and evidence.
    
      Aldrich, for appellant.
    
      Bellinger, Hutson, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

The plat made by Buckhalter in February, 1831, which is annexed to the deed from William S. German to the plaintiff, and professes to delineate the parcel of the land granted to William Minor, which that deed conveys, would as color of title, have extended the plaintiff’s title to the lines delineated, if it had been attended by continuous and exclusive adverse possession within some part covered by the opposing claim. Without such possession, it would furnish strong evidence on the question of location, if it was unopposed by a contradictory title or possession. But on the trial of this case there was evidence, which the grounds of appeal did not require to be reported, shewing that in the disputed territory, (lying between the eastern line of the Minor grant as shewn by plat distance, and its eastern line as indicated by the Surveyors appointed in this case,) grants had been made to David Dykes in 1805 of seven hundred and eighty-nine acres surveyed in 1804, and to Wiley Owens in 1819 of one thousand acres surveyed in 1818, which two grants in part overlap : — that the defendant’s lessor, Joshua Corley, had been in possession under both of these grants since 1836, and had a title derived from some of the heirs of Dykes older than the Buckhalter survey, and a title under Owens as old as 1836. Under these circumstances, it is impossible that the Buckhalter plat, or the plaintiff’s possession under it of a part outside of the defendant’s claim, should have any effect upon the defendant’s possession, or upon the question of boundary so far as the defendant is concerned. The case must be resolved into the question, How is the Minor grant to be located, supposing the plaintiff to have title to all that is properly covered by that grant.

This question has been several times before this Court in cases between this plaintiff and other defendants. It came here first on appeal by the defendant from the verdict and instructions in favor of the plaintiff, in the case of Evans vs. Weeks, which was twice argued and is reported in 6 Rich. 83. There in opposition to the decided opinion of Judge Evans, who presided at the first trial on circuit, and of Judge O’Neall, a majority of the Court held that the Southern line, running east from the Black Jack, should stop at the distance called for by the plat, as there was nothing certain to control the exact description by distance. The dissenting members of the Court relied on the “ road to pine log, Edisto,” represented by the plat, and on the Edisto river represented as a boundary. The road they took to be the White Ponds road, and considering it in the nature of a station, they thought that distance beyond it to the east should be given as required by the plat. And the river, which was covered by Johnson’s land that ran from a point up Shaw’s Creek, to a point on the river a mile or so below “ Pine. Log,” they thought should be reached,' and to reach it they thought the north-eastern corner of the Minor line should be at least as far toward the east as the point where the eastern-extremity of the Johnson land strikes the river. But the majority of the Court,seeing that the land had never been in fact surveyed before the plat was made, thought that there was a difference between a road conjecturally laid down, and a station tree actually marked: — and that the river as a boundary could not be reached where it was called for, because Johnson’s land intervened.

That ease was sent back for a new trial, and tried before Judge O’Neall. On the second trial, evidence was adduced which the Judge and jury considered sufficient to shew .that the White Ponds road was the road'represented by the plat. The verdict for the plaintiff was upon appeal permitted to stand, not because the members of the Court who signed the former opinion 6 Rich., considered the road important, but because the jury upon a question of fact, to. which evidence had been offered on both sides, had found a verdict under instructions to which no just exceptions could be urged.

Another case of Evans vs. Corley, 8 Rich. 365, turned entirely upon the construction of German’s deed, the defendant having shewn neither title nor possession.

In the case now before us after another trial about the location of the Minor grant, under instructions to which no objection has been urged besides the one about the Buckhalter plat which we have disposed of, a verdict has been found for the defendant. The same reasons which influenced a majority of the Court in refusing a new trial upon the last appeal in Evans vs. Weeks would incline them now to refuse the motion here, if nothing new appeared. But upon the trial of this case on circuit much new evidence was heard concerning the roads, and the question of fact, upon which both parties staked thejcase, was whether the road called for in Minor’s plat as the “ road to Pine Log, Edisto,” was not the Tory trail; and upon that question, judge and jury have decided .in favor of the defendant. The evidence shews that prior to 1792 there was no bridge over the Edisto at or near Pine Log, (the first Charter for a bridge was in 1791, (9 Stat 333;) but that there, persons walked a log over the river and swam their horses; that before 1790 various paths on both sides of the river led to the Pine Log, of which one on the south side may in some way have gone to the White Ponds; but that none of them was so-old or so notorious as a path called the Tory trail, which was much used in the Revolutionary war, and which led from the Pine Log to the Upper Three Runs : that the Act for opening the White Ponds road, after the building of the bridge,, was passed in 1792, (9 Stat. 349,) and the White Ponds road as it is now seen was cut out soon after-wards : that a few years subsequently, the Cooper road, from its intersection with the White Ponds road, near to Pine Log, to Cooper’s mill on the Three Runs, was opened, and running in the same general direction as the Tory trail, frequently crossed it, after which the Tory trail was discontinued; and that traces of the Tory trail are yet to be seen, and cross the southern line of the Minor grant about the proper distance from the Black Jack, according to the representation of the road on the Minor plat. This evidence of itself would raise a strong belief that the Tory trail was meant by Minor, and not the White Ponds road; but confidence is increased by an inspection of the plat of the adjoining Lend on the south, granted to the same William Minor, and surveyed by him in May, 1791. That plat as the surveyors testified was located, and on it is seen plainly delineated Road to Pine Log,” crossing the dividing line between the two tracts at the proper distance from the Black Jack which the plat in.this case requires, and traversing the southern tract towards the south-west, until it passes out near to where the Three Runs pass out. It is clear that the road represented was a road to the Three Runs, and not one to the White Ponds, and the putting of the two plats together leaves no doubt that the same road is represented in both. Under the rule then that would regard the road as a station, and take plat distance from that, the location approved by a majority of the Court in 6 Rich, is shewn to be true, if we take distance from the Tory trail which is established by the evidence and verdict in this case.

But a majority of the Court thought before, and still think, that too much importance has been given to the delineation of the road where it crosses the Southern Line, while the delineation of its crossing on the Northern Line, and its relation to the point where the Edisto is to be reached, have been wholly neglected.

The grant -in this case is to William Minor, August, 1793 ; the plat made by William Minor, Deputy Surveyor, (probably, but not certainly, the same person as the grantee,) is dated May 27, 1790, when, as it professes, the survey was made. In the certificate subjoined to the plat, the boundaries are Taylor’s land, Minor’s land, Johnson’s land, Edisto river, Shaw’s creek, and vacant lands; but, in the mention of them, manifest mistakes were made in the points of the compass, S. E., having been put for S. W., East for South, and West for North.- These mistakes might have been innocently made; but a close'examination shows that the whole plat is a cheat and a fraud. Lands had been actually surveyed for William Minor and some other persons on the Three runs, for Taylor between the Three runs and Shaw’s creek, and for Johnson on- the Edisto — the distances between Taylor and Johnson on one side, and Minor on the other being each between three and four miles. Some lines of Taylor’s land West of a certain Black Jack were known, and also onS line running from the Black Jack North twenty degrees, West one hundred and sixty-nine chains. The evidence afforded by a comparison of the plat in this case with subsequent developments, is almost conclusive to show, that with a knowledge of the above particulars, and a general knowledge of the country, Minor, without probably, stretching a chain, made for himself plats of an immense territory, East of Taylor’s and between his own tract on the Three runs and Johnson’s, and afterwards obtained grants on these fictitious surveys. One tract he represented South and East of the Black Jack, by lines taken partly from former surveys, which is said in the plat to contain fifteen thousand five hundred and fifty-six acres; the tract now in question he represented to lie North and East of the Black Jack, and to contain eleven thousand seven hundred and thirty acres. He divided the two by a line running due East from the Black Jack. On the Southern tract he made the distance of that line two hundred and forty chains, on the Northern, he extended it to two .hundred and eighty-seven chains, calling in the plat of the Northern tract, now in question, for his Southern tract and vacant land as boundaries. On both plats, the road to Pine Log Edisto” is represented as crossing the dividing line about the middle of the two hundred and forty chains. The Northern line of this Northern tract (which his certificate calls the Western) is laid down almost sti’aight, although it is made up of Shaw’s creek, Edisto river from the confluence of creek and river to Johnson’s land, and then of Johnson’s line to the terminus of this Northern line at a stake. Across this line of Johnson’s, laid down as part of the Northern line of this Minor tract, the road to Pine Log is represented to run, and Johnson’s Western extremity is represented to be on the river above Pine Log, and below the confluence. The whole length of the Northern line is represented as three hundred and forty-seven chains; the whole length of the Eastern line,, running due North from the end of the Southern to Johnson’s land, is represented as three hundred and thirty-eight chains. The Western line is made up of Taylor’s line, slightly deflecting from the cardinal points, one hundred and sixty-nine chains, and a line running due North, from the Northern end of Taylor’s line to Shaw’s creek, one hundred and eighty-five chains. The entire tract is represented as . -almost a square.

An exact rectangle of three hundred and forty-seven chains long and three hundred and thirty-eight wide, would contain eleven thousand seven hundred and twenty-eight and six-tenths acres, which no doubt, after calculation-, was rounded into eleven thousand seven hundred and thirty. But creeks and rivers, and oblique lines, do not make rectangles, and a general knowledge of a country is insufficient for correct delineation or exact measurement. It is not therefore strange that Minor’s representation is found to be erroneous, and scarcely capable, with all the helps which it can derive from rules of location, of being applied with certainty to any parcel actually found to exist. The line due North, from the Northern end of Taylor’.s line to Shaw’s creek, instead of being one hundred and eighty-five chains, is only, when actually run, about sixty chains : and a line due North from any point of the Southern line, or of the Southern line - extended, to Johnson’s land, instead of being three hundred and thirty-eight chains, is only one hundred and forty-four chains, according to the location of the surveyors, and only two hundred and six chains, running into an angle of Johnson’s land, according to the location approved by this Court. Hence the great falling off of quantity; but it does not follow that the deficiency at the North must be supplied by encroachments in the East.

The argument for the plaintiff is made up of reference to arbitrary rules of location improperly deduced from decided cases by. generalizing special instances; and of a misapplication, as invariable axioms, of the methods which, in subordination to principle and subject to many exceptions; have been often used to attain truth. It is said, Johnson’s land is called for as a boundary and must be reached ; Edisto river is called for, and to Edisto you must get. As Johnson’s land, instead of running to the river between the confluence and Pine Log, embraces the confluence, and extends far below Pine Log, to reach the river without invading that land, you must run to the Eastern extremity of that land, and where it corners on the river, make the North-east corner of the Minor grant, so that the boundaries of Johnson’s land, and of the river, may be satisfied.

But the ultimate purpose in all these questions of location is to ascertain what is the thing described. Where the description is in a grant from the State, decided cases forbid that the fictions, frauds and palpable errors of the grantee, or his surveyor, should make the grant void, although it is in fact the act of the grantee, and not of the State. The interests of innocent purchasers, often of honest owners, whose rights are trespassed upon by irresponsible squatters, have inclined the Courts to favor the grantees in construction of old grants; and perhaps it may be admitted that doubts, in an equal balance, should be decided in favor of a grant, and that in conflicts of boundary between two grants, the older should have the advantage in construction. ' But after these large admissions of what cases might show, it is certain that, in locating a grant, the aim should be to fix with certainty the parcel granted; that the terms of description used in the body of the grant, in the certificate. subjoined to the plat which is annexed to the grant, and in the plat itself, to which the grant refers, and which should be more certain and exact than any other description can be, should all be weighed, and from the whole, applied to the subject by inspection or testimony, the exact limits of the parcel be established. Where, in the whole description, many terms are introduced, they should all be reconciled if» possible 5 but where they are inconsistent, a certainty should not be destroyed by a false demonstration, much less by a vague or impossible requisition, and of two certainties, that which is more obvious and durable should be preferred. In the application of these principles to the solution of the puzzles which false or unskilful surveying, and careless or mistaken descriptions, often produce in the location of old grants, it has been found that accuracy in the use of instruments is less to be expected than a truthful report of what has been seen, and that, therefore, where a line is described as running from an ascertained point, on a certain course, for a certain distance, to a monument, river, tree, or other fixed point, which is well described, the terminus described should be regarded rather than the result .which may be attained by using instruments in the manner specified. But when the terminus cannot be ascertained, the instrumental result must prevail. In like manner, a boundary contained in a description may become the terminus of a line, or may deflect a line, or break it into several lines, just consideration being bestowed upon the mode in which the boundary is introduced into the description, and upon the consistency or repugnancy of the various terms.

In this case, the Edisto river is called for as a boundary, but the plat shows that it is required as a boundary at the confluence of Shaw’s creek with it, and above the Pine Log. To the call for the river, definiteness is given by specification of a particular portion of it. Why then should the river be sought below Pine Log, and a portion of it be taken different from that which is specified ? It is called for, by the more exact description of the plat, above Johnson’s land; why should we labor to reach it below ? Johnson’s land is called for, and, from a stake, its line is represented as running due West,to the river. Why should the course be reversed, and a line be pursued due East from the point where the land is reached ? The whole difficulty arises from the inaccuracy of Minor’s conjectures about 'the lines of the Johnson tract, and the course of the river. He supposed Johnson’s line was straight; it is zig-zag. He supposed it ran to the river between Pine Log and the confluence ; it-embraces the confluence and extends up the creek. If we would draw a line from some point on the Johnson line, Northwest of where the Eastern Minor line, before approved by the Court, strikes that land, to some point on the river between Pine Log and the confluence,-and consider that line to be-Johnson’s, all difficulty would vanish, and every boundary called for by grant or plat would be satisfied.

It is strange that the gross inaccuracy of a surveyor should be considered so much more beneficial to himself or his employer, than could be the honest exertion of his skill. So it must be, if an incorrect delineation shall be held to embrace all that its conflicting terms, taken separately, may require, and when, after satisfying one of the terms, and thus excluding the application of the other, according to the representation which shews its meaning, we should go on to satisfy that other too, by giving not what it asks, but the nearest approach that we can make to its requisition. The river, where it is asked for, cannot be got, for Johnson’s land covers that — therefore, the river in another place must be given. The two boundaries conflict; give one, and something as much as possible like the other. If we should go a mile below Pine Log to reach the end of Johnson’s land, and to find the river uncovered by it, then we should go almost indefinitely East and North for that purpose, if the river turned its course, and Johnson’s land was surveyed in the same supposititious and grasping manner as Minor’s was.

It is the decided opinion of the majority of this Court, that a correct location of the Minor grant does not include the places where the defendant has done the acts complained of as trespasses. There is nothing which authorizes us to extend the Southern line from the Black Jack further toward the East than the distance called for. A certainty obtained can yield only to a certainty more reliable. Even if the point on the river at the. Eastern extremity of the Johnson land is a true corner of the Minor grant, a straight line thence to the termination of the plat distance on the Southern line would not include the places of the supposed trespasses; and a straight line from two ' ascertained points is the correct line, if there is not sufficient reason for preferring another. Sufficient reason could hardly be found for following the Southern line to its intersection with the Eastern line, run due South from the point on the river, in any respect which should be given to the course of the Eastern line, as represented by á plat, -which, in almost every other particular, would have been found inaccurate, and would have been departed from.

Minor’s plat is laid down as if the running of the land by him was done with the land on his left, as it should' have been : so that, following his delineation, we' should begin from the Black Jack (the only really well established point of the whole tract), run the Southern line, then to Johnson’s land, Shaw’s creek, and so on : but running in the contrary direction, which seems to be preferred by the plaintiff, would make no difference in the principles or rules which should govern the construction of Minor’s plat.

The'motion is dismissed.

Withers and Whitner, JJ., concurred.

O’Neall, J.,

dissenting. I regard the decision in this case as completely overturning all the rules of location heretofore established. Por, if this verdict stands, course and distance will control natural marks and boundaries. These are found, and by the location for the defendant are entirely lost sight of. For to talk about the Tory trail, a path used by Tory horse-thieves in the Revolution, and used by no human being since— the trace of which, sixty years ago, when the Cooper road was laid out, was that of an oída bandoned track, crossed here and there by it — as the road to Pine Log, is, to my-mind, too absurd to be seriously relied on. Take it, and compare it with the location produced, with that of the road to the Pine Log laid down in the original plat, and it becomes plainly unreasonable to suppose that it was the road delineated. For the “ Tory trail” is not called for, and it certainly wobld have been so designated, if it had been intended to be laid down, as that was the name by which it was then. known. So, too, it does not run through the centre of the grant, as located by it, but angling through one corner, it reaches Edisto river entirely outside of the grant, while the Pine Log road laid down runs from tire river through the centre of the tract. The great argument is, that when it leaves the plaintiff’s grant, it corresponds with the delineation on another grant to Minor, lying on the line marked S. E. on this grant.' There would be great force in that if that survey had been traced on the ground by the surveyors; then, indeed, if the re-survey thus made had carried the road, there found as the Tory trail, to the point where found on this, it would have been a strong evidence of identity; but to lay that old plat down by the side of this survey, and claim the identity of the roads by their happening to come together, is to assume that that survey was accurately made, and laid down a road then correctly, when another plat, made by the same man, within a very short time, laid it down wrong.

The Court, in assuming now such a position, is deciding that the Tory trail is the road of this survey, when in Evans vs. Weeks, decided at November, 1853, the decision of the jury was, that the road from White Ponds was the road supposed .

The Court is, I think, to be consistent, obliged to fall back on their location in Evans vs. Weeks, 6 Rich. 83, and which, with due deference to the reasoning of my brethren now and formerly, was, I think, not only unsupported by authority, but absolutely at war with it. Here, as a vindication of my position, I will simply call attention first to a few cases. In Coates vs. Matthews, 2 McC. 100, course and distance was overruled by little Salada river, a stream very far from,being a very permanent one. In it, Judge Johnson said, “ Course and distance must yield to actual marks, whether they are natural or artificial.” In Wash vs. Holmes, 1 Hill, 15, it became my duty, twenty-two years ago, to say that a location was governed, 1st, by natural boundaries, such as rocks, mountains, rivers and creeks ; 2nd, by artificial marks ; 3d, adjacent boundaries ; 4th, course and distance; 5th, shape of the plat. In Fulwood vs. Graham, 1 Rich. 491, these rules were applied to give great extension to lines against the distance laid down, and to vary courses — indeed, to absolutely abrogate them. If that case -was decided wrong, as I have heard one of my brethren say, I ask how did it happen that Sturgeon vs. Floyd, 3 Rich. 83, was governed by it, and that as accurate a Judge as my late brother Evans, should have said, Since the decision of the case of Fulwood vs. Graham, 1 Rich. 491, it is no longer a question that natural marks shall control course and distance, even though the line should exceed the length four or five-fold.”.

On the present occasion it must be remarked, that the original plat and grant calls for Edisto river : the location supported 'by the Court does not touch it. But it is said, you cannot locate the land so as to reach it. It is as plain as a sun-beam that it can and will be done, whenever the grant is located by boundaries and natural marks: indeed, Barillon’s survey, as will be seen by referring to the case in November, 1853, did reach the river, as a boundary. To locate the land according to natural marks and adjacent boundaries, begin at the Black Jack, the acknowledged corner, pursue Taylor as a boundary, until you reach Shaw’s creek, thence down it to James Johnson’s grant (called for as a boundary), which must be followed till you reach the Edisto ; stop there, and go back to the Black Jack, and run the line thence, on the course of the plat, to the Edisto river, where the survey stopped, going round the other way, and the tract is located, and the defendant’s claim is within it. If this be not a correct location, I confess I shall have the whole principles of location to learn over.

Glover, J., having been of counsel, did not hear the case.

Motion dismissed. 
      
       The following is tlie report, grounds of appeal .and decision of the Appeal Court in the caso referred to
      The report of his Honor Judge O’Heal, before whom the case was tried at Barnwell, Fall Term, 1S53, is as follows:
      “This was an action o-f trespass, to try titles to a fcract of eleven thousand seven hundred and thirty acres, granted 5th August, 1793, to Wm. Minor, surveyed 7th May, 1790. In the grant the land is described as lying on both sides of the road to the Pine Log, and partly on Shaw’s Creek and Edisto River, hounded south-east by George Taylor’s land, east by Wm. Minor,'west by James Johnson, Edisto River and Shaw’s Creek. In the plat these boundaries appear to have been described wrong, unless they are taken as lying on lines running south-east, &c., then they would be right, except the Edisto should have, been called for before James Johnson’s land.
      “The road to the Pine Log is laid down about midway of the plat. The paper title of the plaintiif was fully proved. A copy plat to James Johnson, for one thousand acres was»given in evidence. The defendant’s claim rested on a grant to Patrick Kitchens, dated 5th September, 1814, for one thousand acres. The defendant is in possession under his heirs; this tract lies within the lines of the Minor grant, as contended for by the plaintiif. A trespass was admitted. John N. Barrillon, the surveyor, proved that since the former trial, he has made another survey; that starting at tbe Black Jack Corner, Taylor’s survey, and giving course and distance on tbe line running oast, it would cross tbe Cooper Road, but would not reach the White Pond Road, crossing at Pine Log. He ascertained, he said, the age of tbe Cooper Road to be fifty-five years, and that pf the "White Pond Road to be sixty-three years. This he did by cutting out a blaze on each, and counting the growth of the trees. Giving distance from the White Pond Road, according to the plat, it would go beyond the defendant’s grant. Running thence the course of the plat, he struck the Edisto : pursuing it a very short distance, he reached Johnson’s land; pursuing it he came to Shaw’s Creek — thence up it to where the line from the Black Jack, following Taylor’s boundary, reached the Creek. This'he thought the true location.
      “Lawrence P. Hext, another surveyor, thought the location ought to be by course and distance. There were no marks, except the Black Jack, and he thought the lines had never been run by the original surveyor. He did not think the age of a blaze could be accurately ascertained by counting growths. Mr. Garvin, another surveyor, was not present; the defendant’s lessor, (Kitchens,) stated on oath what he expected to prove by him. This was admitted as his evidence. I have it not; the counsel can print it with this report. Isaac Johnson proved that in the revolution there was a path called the Tory Trail, crossing the Minor Line near Toney’s field, and running thence to the Pine £og. Mr. Bellinger produced the acts of the legislature, showing that the Cooper Road was directed in 1796 to be opened, and the White Pond Road in 1792. The Jury were instructed that the opinion of tbe Court of Appeals in this case must govern them, unless they found some facts in the case, varying it from the former trial. The only things, I thought, were, that tbe Cooper Road was now shown to be entirely too young to have existed at the grant. The White Pond Road wasolder than the grant, though younger than the survey, according to the Act of the Legislature. The blaze, if Barrillon was right, showed that the road existed in 1790. Tbe Jury were told, if that was the road indicated in the plat and grant, it was a circumstance in favor of the plaintiff’s location, for the grant called for land on both sides of the road. The Other thing was, the Edisto was now found to meet the line run from the terminus of the plat distance from the White Pond Road. It was not, however, in its proper place. I told the jury that unless these circumstances clearly satisfied them that Barrillon’s location was right, they must find for the defendant. They found for the plaintiff, according to Barrillon’s location, and I confess it aecords with hay views formerly and now.”
      The defendant appealed and moved for a new trial on the grounds, viz.:
      1. Because the verdict locates the land in dispute by running east along Johnson’s land, to the terminus thereof, which is at Edisto river, which is the identical location found by the Jury on the first trial, and set aside by the Appeal Court. Neither the river for a boundary, nor the road as a station!
      2. Because the location contended for by the defendant, and adopted by the Appeal Court when ordering a new trial, viz.: fixing the eastern boundary by course and distance, is the correct location.
      3. Because the only new fact developed on the second trial, (when the plaintiff made a weaker case,) was, that the plaintiff's surveyor, (J. hi. Barrillon,) from examining the blazes of two trees, concluded that the Cooper road was too young for the original survey, and that the White Pond road was laid ouc 63 years prior to his last survey, on 26th September, 1853, viz.: on 26tb September, 1790, which was several months subsequent to the original survey, 27th May, 1790 — whereas, it appeared that the White Pond road, the oldest road of the two, was laid off by Act of Assembly, December, 1792; so that neither of the roads existed on the 27th May, 1790, when the original survey was made, and could not have been the road to Pino Log, lepresented in the said survey, on which survey the grant was predicated. and to which the said grant expressly refers, for the shape, form and marks of the land, “ as represented by a plat hereunto annexed.”"
      4. Because the only other plausible location, on which the verdict might be sustained, is to consider the White Pond road as a station, which is in direct contravention to the said decision of the Appeal Court; and on the second trial it was provod that the said White Pond road did not exist at the time of the said original survey.
      5. Because the said verdict is in direct opposition to the decision of the Appeal Court pronounced at December Term, 1852, in the very same case, between the very same parties, on the very same facts, (exceptas above excepted,) and touching the very same questions of law.
      6. Because, even if the said decision were obnoxious to the objections urged by the plaintiff's counsel before the jury, (as it is not,) and even if it could not be shown, (as it can be shown,) to be perfectly correct — founded on a true conception of the facts, and in conformity to the well settled rules of location — nevertheless, the said decision was the law of the case, and as such ought to have been respected and implicitly obeyed by the jury.
      7. Because the said verdict, unless set aside, will be of evil precedent — not only sanctioning similar verdicts in times past, hut giving license in times future, to impugn and set at defiance the most solemn adjudication of the highest tribunals of the State.
      8. Because the verdict is contrary to law and evidence.
      Curia per O'Neall, J. In this case it is not proposed to question the opinion heretofore expressed.
      It went to the jury as their guide to a decision, but they were told, if there were facts now found to exist varying the case from what it was before, that then they might possibly find a location different from that advised by the opinion.
      The first of these was, where was the road leading to the Pine Log spoken of in the grant, and delineated on the plat? If they believed, that that was the White Pond road, then it was a strong circumstance in favor of the plaintiff's location. Eor the grant called for land on both sides of the road. The proof in this behalf was submitted to them.
      Their attention was next directed to Edisto river, which, it was now found, could be reached by a line closing as the plaintiff desired, and thus all the boundaries of the plat and grant to Minor be obtained. The jury found the White Pond road to be the road, and I think they were perfectly right. The growth of the tree chopped, showed it had been blazed for a public road in the year 1790. This was the year of the survey. In the year 1791, Johnson was authorized to build a bridge at Pine Log. There must have been some road, there, before that time. In 1792 the road from Hampton’s bridge on Saluda to Pine Log, White Ponds and Sisters ferry on Savannah was directed to be opened, and made a public road. This, no doubt, referred to an existing road which was then made public. The Tory trail spoken of by Mr. Johnson, was a mere track pursued by the Tories in the Revolution, from a horse pen near Toney’s field to Pine Log and Upper Three runs. No trace of it remained, except at the field spoken of; there was no proof that it was ever used after the Revolution. Under such circumstances it could not bo looked to. The Cooper road was entirely too young. Under these circumstances the jury very properly came to the conclusion that the White Pond road was the road indicated.
      When it was thus ascertained, land on both sides must be found. How much east? The surveyor could not do otherwise than measure the plat from the road and give the distance. This done, the line closed to the Edisto, James Johnson’s land and Shaw’s creek. But it is said the jury have only found from tbe northeast corner of James Johnson’s land, on the river, to the corner reached on a direct line to the line running east from the road.
      This was right; for the plaintiff’s deed, executed twenty-two years ago, conveyed to him tbe land to that corner, and by that line. Although the grant may cover more, yet he had no claim beyond the line found.
      The former opinion admitted the doubts attending the location. It merely advisecj, upon the facts then before the Court, the location suggested. It was not intended to say this is the law of the case. The defendant has had the full benefit of it, and yet, on other facts, the jury, as they had the right to' do, adopted another conclusion.
      The motion is dismissed.
      Wardlaw and Withers, JJ. We concur in the result simply.
      Whither and Glover, JJ. We dissent.
     