
    Campbell vs. Clark.
    1. The purchaser of public lands of the U. S. is governed, in th.e boun-dries and contents of the land purchased, by the act of Congress of Xlth Feb’y 1805, “concerning the mode of surveying the public lands of the U. S.” which act provides, among other things, that each section or sub-division of section, the contents whereof have been returned by the surveyor general &e., shall be held and con.''-' sidered as containing the exact quantity expressed in such returns, and that the boundary lines actually run and marked in the surveys returned &c., shall bo established as the proper boundary lines of the sections and sub-divisions of sections,
    2. The act of Congress, of 11th Feb’ry 1805, in this respect, declares, in express terms, the rule of the common law, viz: That whore land is sold by metes and bounds, the purchaser so takes it, be the quantity more or less; and if the tract contains less than it is sold for, he is without remedy, unless 'he can prove that the vendor was guilty of fraudulent misrepresentation.
    Error to the circuit court of- Lafayette county.
    
      W. Adams for Plaintiff.
    
    To reverse the judgment of the circuit court, the plaintiff will insist upon the following points.
    1st. That the line-running from the half mile corners established by the United States surveyor, was the true boundary between the lands of the plaintiff and defendant.
    2nd. That those corners constituted monuments in the boundries of the respective lands of the plaintiff and defendant, and that the respective quantity of acres of their lands, as well as the courses and distances in .the lines bounding the same, were and ought to be governed by those monuments. See, 2nd Mass. Rep. 382, Pernam v. Wead. 6 Mass. Rep. 133, Man and Tobs v. Pearspn.' 2nd Johns Rep. 40, Starring vs. Defendorf. 1 Cains 493. Hardin’s Rep. 542, 1 Marshall 17. 1st Pirtle’s digest, 128. 2nd Bibb 494. 4 Bibb 504. 15 Johns. Rep. 471. 5th Binn. Rep. 77. 5th Mass. Rep. 355. 5th Cond. Rep. S. C. U. S. 194.
    
      Burton for Defendant.
    
    1st. That the judgment was given for the right party in the court below.
    2nd. That the court has a right to rectify a gross, palpable.and evident mistake of the surveyor, in this case arising from the negligence or supineness of the chain carriers or surveyor. See 1 Johns Rep. Jackson ex dem Cros'sett and others vs. Hunter 496 side paging.
    3rd. TJiat the court had a right to reject the tree on the south side of said section, purporting to be half mile corner, unless- proven to be such by the field notes, or some other evidence further than is introduced in this suit.
    4th. That there is no evidence in this cause showing the boundaries of the plaintiff's land, and that the defendant had the same in his possession at the commencement of this suit,
    5th. That the court committed no error in the present suit in giving and refusing the instructions assigned for error in this court. See the act of Congress passed May 24th 1S20. and the act therein referred to passed in 1805.
   Opinion of the court delivered by

Tompkins Judge.

Campbell brought an action of ejectment against Clark in the circuit court. The verdict and judgment in that court being against him, he prosecutes this writ of error to reverse the judgment.

Campbell was the purchaser from the United States, of the east half of the south west quarter of section No. twenty-one, in township No. forty-nine, of range No. twentj’-eight, in the said county of Lafayette, containing, according to the statement made in his patent, eighty acres. Clark the appellee, who was defendant in the circtiit court, seems to be admitted to be the purchaser of the half quarter section lying next east of that of Campbell, appellant and plaintiff in the circuit court.

No evidence was given, or none at least appears on the record, that he, or any under whom he claims, had purchased from the United States. Clark’s land, then, would be the west half of the south east of the same section above mentioned.

It appears from the evidence that the quarter section corner established by the deputy surveyors of the United States in the line bounding the section on the -south, is twenty • poles nearer to the south east corner of the section than it is to the south west corner, and the consequence, according *to the witnesses statement, is, that the plaintiff, Campbell, has in his half quarter section ninety-five acres, and the defendant Clark only sixty-five. To correct this irregularity, Clark claims to establish a new quarter section corner, equally distant from S. E. and S. W. corners of the section and run a direct line from such newly established corner, to the corner of the quaiter section in the line bounding the section on the north. This quarter ■ section corner in the northern line is admitted to be in the middle of the line, that is to say, one half mile-distant from each corner. For trespasses alledged to have been committed on the disputed ground this action was brought.

pubnV lands of tin-0rnod,'*in ^bi-foundries and contents ot land pur-the act of$on of lith “concerning mo.de surveying the public lands which provides, a-things,°that or^ub d°v'°n’ sion of section whereof have been returned orgeneral «Jan and11consld°ld ed as contain-pressed in boundarylinis run & marked in the sur-&c.S shaiPbe established as boundary1' lines of the sub-divisions ■of sections.

The circuit court instructed the jury as follows: that the lines, dividing a section into quarters, should be run from a point in one of the sides of the section equi- distant from .the corners of the section, to a point in the middle betwixt the two corners of the opposite side of the section; and that if the quarter section corners, established in the several sides of the section by the United States surveyors, are not in the middle of the lines connecting the corners, no regard is to be paid to them. And to divide a quarter section into halves, the line must run in like manner from a point in the middle betwixt the quarter section corners, established as above, directed to a point in the middle of the opposite side of the quarter section.

Other instructions were asked by each party; some of which were given, and some refused. That set out above, seems to be the only one material to a correct decision of the cause.

The act of Congress of the 11th of February 1SÜ5 settles the question in few words. The" second section of that act reads thus. The boundaries and contents of the several sections, half sections, and quarter sections of the public 1 lands of the United States, shall be ascertained in ity with the following principles, any act, or acts to the contrary notwithstanding: 1st. all the corners marked the surveys returned by the surveyor general, or by the surveyor of the lands south of the state of Tennessee ^ spectively, shall be established as the proper corners or sub ^v‘s^ons secti°ns’ which they were intended to designate.

The act iltlfrFob’ryf 1805, in respeet, do-claros, m ike rule of tlíe common law, where land is and bounds08 thepurchaser the^qumntity modr®for less¡ tract contains less thu* it is sold for, hs i» ¡dyk^iesT1' he^an prove dor was guil-°f ilraudu:' lent raisrep-rosentation.

The boundary lines actually run and marked in the sur™ys hY surveyor general or by the surveyor south of the State of Tennessee, respectively, shall be considered as ProPer boundary lines of the sections or sub-divisions, for which they were intended, and the length of such lines as returned by either of the surveyors aforesaid, shall be anc* cons^erec^ as true length thereof: And the boundary lines which shall not have been actually run, and mar^e<^ as aforesaid, shall be ascertained by running straight lines from the established corners, to the opposite corres-P°ndmg corners. The third section proceeds to state that: sect*on or sub-division of a section, the contents whereof shall have been, or. by virtue of the first section of s^aH be returned by the surveyor general, shall be held and considered as containing the exact quantity expres-such return: and the half sections and quarter sections which shall not have been thus returned, shall be held and . , , . . , , , . , considered as containing the one halt, and one fourth part resPectivety of the returned contents of which they make a part.”

The act of Congress declares in express terms what I have always understood to be the common law, that is the plain dictate of reason; viz: that land being sold by metes and the purchaser so takes it, be the quantity more or less; and if the tract contain less than it is sold for, he is without remedy, unless he can prove that the vendor was guil-of fraudulent missepresentation. But that the de- ' * should claim to make up the deficiency of ^1S quarter by going on the land of his next neighbor, seems to be a strange doctrine. Nothing hindered Clark from ascertaining the true quantity of land in the quarter sect*on °f which he purchased, from the United States, one half; and if he has been careless and given morefor the land ^an ^ *s W01’th> he is not to expect the man who purchased the adjoiuing half of a larger quarter to make up his less half, There is no privity of contract betwixt Campbell and Clark; and as Clark would nave had no right against Campbell for this land so he can have no right to take possession of it against Campbell. Clark must take the half of the quarter section in which his land lies. That is to say, he is to find Jhe middle of the northern and southern boundary lines of his quarter section, and his eastern boundary must be a line running directly through the quarter section from the mid-die of the northern boundary line, and Campbell himself can take only the half of the larger quarter. The judgment of the circuit court is reversed and the cause remanded for further proceedings in conformity to this opinion.  