
    Riggs and Prichard vs. Parker’s lessee.
    
    GRANT. Public survey omitted or effaced, private survey or remarking lawful, and estops. If granted land, not originally marked by the surveyor, or whose marks have become obliterated or obscure, be afterwards marked or remarked by the owner of the whole or part, in good faith, and in reasonable conformity with the call.s of the patent, such private marking or remarking operates as an estoppel on the owner, the state, and subsequent grantees; precluding the owner from claiming land not included by the newly marked or remarked lines, and the state from claiming that which is included thereby.
    CAME. What markiug or remarking is bonaJide, and in reasonable conformity with the calls of the patent, is a question of fact, depending on the circumstances of each case.
    North Carolina granted to Edward Sharp 5000 acres of land, tbe south east corner of which was a white oak, birch, and crab-apple. There was also granted, by patent S3, to Anthony Sharp, 3500 acres, the beginning corner of which was the same trees, and which called for running thence east ISO chains, to two swamp white oaks, thence north 194J chains to a stake, thence west ISO chains to a stake, thence south to the beginning. The distance between the corner designated by the white oak, birch, and crab-apple trees, and that marked upon the two swamp white oaks, instead of being ISO chains, equal to 720 poles, was 830 poles. On the 13th of August, 1799, A. Sharp conveyed to James Robertson, who had located both tracts, one third being the locative interest of the 3500 acres, and in the deed described it as beginning on the north-west corner of the tract, a stake, and running south, &c. But as no line of the 3500 acres had been marked in the original survey, except the first? and that was 110 poles longer than the distance assigned to it in the patent, it followed, that the place of the stake, called for in the deed to Robertson, as the north-west corner, if sought for by traversing the courses and distances called for in the patent, would be 110 poles east of the eastern boundary of the 5000 acre tract. And then there would lie between the two tracts a triangular parcel of land, as represented in the annexedf diagram, not included by either patent. But if the north-west corner of the 3500 acres were sought for, by reversing the courses and distances from the white oak, birch and crab-apple, then the place of the stake would be in the eastern boundary of the 5000 acres, and there would be no vacant land between the patents.
    Adopting the latter mode of seeking for the north-west corner of the 3500 acres, those in whom Robertson’s interest had become vested by mesne conveyances, and from whom the plaintiffs in error claimed, had in 1830, caused that interest to be surveyed by one Mitchell, who marked a poplar and white oak, in the eastern boundary of the 5000 acre tract, as the place of the stake called for as the northwest corner of ihe 3500 acres. On the other hand, the lessor of the plaintiff, assuming the former as the lawful and proper method of surveying the 3500 acres, entered and procured a grant from Tennessee of a portion of the trian-lar parcel, represented by the dotted lines in the diagram, and thereupon sued the plaintiffs in error, namely, Riggs as tenant and Prichard as landlord in ejectment, in Dyer circuit court, on the 7th of March, 1S35.
    
      
    
    
      On the trial at June term, 1837, before Ins Honor Judge HaRRís, and a jury of Dyer, Riggs and Prichard admitted that they were in possession of the premises at the commencement of the suit, but defended themselves by setting Up an outstanding title, to establish which they relied upon the documentary and parol evidence recited in the opinion of the court. His Honor charged the jury as is also therein staled, and the result was a verdict of guilty; and a new trial being refused, this appeal in error was prosecuted.
    Fitzgerald and Sampson, for the plaintiffs in error,
    insisted, that it was the duty of the officer who made the original survey, to lay down the land in an oblong or-square, by running the lines to the cardinal points, act of 1777, c. 1, §10; that it would be presumed he had done bis duty,. Mc-Nairy vs. Hightower, 2 Tenn. R. 302; that to survey the land, however, as was contended for, by the defendant in error, would not be in conformity with the requirements of the law upon the subject, as it would not be in an oblong or square, its lines would not run to the cardinal points; that it was apparent that the surveyor and the enterer both intended to make the eastern line of Edward Sharp’s 5000 acres, the western boundary of the 3500 acres; that they had not done this was the effect of mere accident; that this showed that the remarking, whether in accordance with the law or otherwise was at least done in good faith, and certainly without any knowledge, on the part of those who did it, that they were including land not within the original limits of the grant, or which ought not to be within it according to the intent of the first appropriators; that the mere fact that the resurvey does include more land than the grant would include, if surveyed according to the calls for course and distance, would not, without malajides, vitiate the remarking, Johnson vs. Buffington, 2 Washington, 116; Taylor and Quarles \s. Brown, 5 Cranch, 234; 1 Yerger, 488, opinion of Judge Whyte; that remarking being founded upon necessity, it was a favorite policy, both with the courts and the legislature, to sanction what parties, acting under such necessity, reasonably and fairly did, as might be seen from the acts of 1806, c 1, § 21; 1819, c 1, § 7, and Williams vs. Buchanan, 2 Ten. R. 282, opinion of Judge Whyte, and the whole tenor of judicial decisions upon the subject, from 1813 to 1833, when the case of Singleton vs. Whitesides, 6 Yer. 18, was decided; that in the case of Davis vs. Smith and Taply, 1 Yer. 496, the resurvey was made by Searcy and Nechard, owners of part of the grant, who assumed only to mark what they themselves claimed, and between that case and the present it would be difficult to perceive a difference in principle; that the doctrine was now well established and generally understood, and that to unsettle it, as must be done to sustain the claim of the defendant in error, would be productive of much confusion, uncertainty and positive injury throughout the state.
    A. W. O. Totten, for the defendant in error,
    said that the principal question was, what is the true method of surveying the land granted to Anthony Sharp? As to which he insisted, that when a party had made his location, it became the duty of the state to survey and grant the land; that the survey is the evidence of the land designed to be granted, Phillips’’ lessee vs. Robertson, 2 Ten. R. 399; that the grant is conclusive evidence, against which no averment is allowed, that the survey had been made, Garner vs. Norris’ lessee, 1 Yer. 65, Co. Lit, 260; and this, though there be a non-conformity betweeen the grant and survey as to the boundaries of the land, Person vs. Roundtree, 1 Haywood, 378, note; that marked lines ^nd natural boundaries, in making surveys, control the calls for courses and distances, Blount’s lessee vs. J'Ldlin, 2 Ten. Rep. 199; 1 Haywood, 237, 258: Sims’ lessee vs. Baker, Cooke, 146, Id. 460; Holland and Bridges vs. Overton’s lessee, 4 Yer. 482: that when there are no monuments of boundary the surveyor is to be governed by the courses aud distances, see authorities cited and Beaty’s case, 1 Haywood, 377; Houston’s Lessee vs. Pil-lóle, 1 Yer. 488; Bradford vs. Hill, 1 Playwood, 22; and McNair y v s. Hightower, 2 Tenn. R. 302; between which last ease and this there is an exact similarity, since it decides that where but one line of a survey in the form of a parallelogram is.marked, and two corners made,but the lineis consider* ably too long, the second and third lines must be run the courses- and distances called for in the grant, and the fourth line made to close, disregarding courses and distances; that the authority of this case had never been questioned, Í Yer. 488 and 493; that the defendant in error had assumed this to be the proper mode of surveying Anthony Sharp’s grant, and in so surveying it there was no conflict between it and his claim, and consequently that there was no outstanding title to the land in controversy.
    
      2. As to the remarking he contended, that there was no such resurvey in this case, as the party could avail himself of, because it did not include the entire grant, and in fact was not intended to do more than simply to ascertain the locative interest, without attempting to identify and fix the boundaries of the grant; that as the doctrine of remarking is placed on the ground of estoppel, Houston’s lessee vs. Pillow, 1 Yer. 481, a resurvey cannot be made by a third person so as to bind the grantee, and if the grantee is not bound neither is the state or subsequent grantees; that this resurvey, moreover, was not in conformity with the calls of (he grant; that Williams’ heirs vs. Buchunan, 2 Ten. Rep. 278; Garner and Dickson vs. Norris’ lessee, 1 Yer. 67; and Houston’s lessee vs. Pillow, 1 Yer. 481; lhe leading cases upon the doctrine, showed that remarking is not allowed when the original marks are in existence and known at the time, the party not being permitted to change the boundaries of his land made before the grant issued; but that, in this case, the survey of the locative interest had been made in total disregard of the corner designated by the two swamp white oaks, about the position of which there was no doubt, and in such manner that the eastern boundary of the grant, if completed by extending the eastern boundary of the locative interest to the southern boundary of the tract, would run many poles west of the swamp white oaks, and therefore to sustain this remarking, would be, in effect, to disregard the only well known and unquestioned monuments of the original survey, and that those who surveyed the locative interest had wilfully disregarded those notorious objects so as to include land which, it must have been obvious then, as well as now, would not be included by surveying the land according' .to the calls of the patent, and consequently the survey was a deliberate fraud upon the state, and therefore void, Houston's lessee vs. Pillow, 1 Yer.
    April 12.
   Green, J.

delivered the opinion of the court.

Parker, the lessor of the plaintiff below, claims title to the land in controversy, under a grant to himself for two hundred acres, dated April 2, 1835.

The defendants claim to hold under a grant to Anthony Sharp, for 3500 acres, dated 10th day of July, 1783. The question is, whether the grant to Sharp covers the land in dispute? It calls to begin on Smith’s line, and run with it and Martin Armstrong’s line, east 180 chains, to two swamp white oaks; thence north 1944 chains, to a stake; thence west 180 chains, to a stake; and thence south to the beginning. The proof shows that the beginning corner of this tract was well marked, and that the line east was marked to the south eqst corner, which was also marked. The other three lines of the grant were not originally run and marked. The distance from the beginning to the south-east corner is 830 poles, 110 poles longer than the grant calls for. If Sharp’s grant be surveyed by Running the first line to the swamp white oaks,thesouth-eastcornerasmarked, thence north 194¿chains,. and thence west 180 chains, the distance called for, and thence to the beginning, the land in controversy will not be included. But if the third line be run the length of the first, and thence south to the beginning, the grant to Sharp will include the land in dispute. On the 13th of August, 1799, Sharp conveyed one third of his tract to James Robertson, to begin on the north west corner of his tract, a stake, and to run south 259& poles to a stake; thence east 720 poles, to a stake; thence north 259& poles to a stake, and west 720 poles, to the beginning. Robertson had conveyed the same land to Frederick Ward, on the 4th of February, 1799, who conveyed to Thomas McCrory, on the 13th of March, 1801. William L. Mitchell, a witness, proved that some time before 1830, he was .employed by the McCrory’s, sons of T. McCrory, who claimed to be the owners of the locative interest in Sharp’s grant, to lay off and survey the same. That ‘he went to the beginning corner of said grant, the white-oak, birch, and crab-apple trees, then he went north with Edward Sharp’s line to a poplar and white oak, which he marked, then he run east, to a white oak and elm, 7924 poles, then south and west from said white oak and elm. Witness marked so as to lay off the said locative interest of said McCrory, being one third of the grant, 1166^ acres. The lines run had never been marked, and he first marked them as the lines of the locative interest; that he did not survey the whole grant, nor mark other lines than those bounding the locative interest. Martin, another witness, stated that he had run the lines marked by Mitchell for the boundaries of the locative interest; that they were generally known, and that McCrory and those claiming under him had been fn possession of the said locative interest, as marked, fourteen or fifteen years. The lines of Sharp’s grant, as marked by Mitchell, includé the land in controversy.

The court charged the jury, that if the lines of Sharp’s grant were not originally run and marked, but had been surveyed since the issuance of the grant, such resurvey to be valid, must be in reasonable conformity to the calls of thé grant. That the proper mode of surveying the grant would be, to run the first line east to the swamp white oaks; and as there were no lines or corners marked from thence, it should be run north, the distance called for, and thence west 180 .chains, the distance called for, and thence, a diágonai line, to the beginning; and that, unless such resurvey were so~made, it was void and binding on no one. A verdict and judgment were rendered for the lessor oí the plaintiff, from which this appeal is prosecuted.

We think the court erred in the charge to the jury. Although the court indicates correctly the method in which the grant should have been surveyed, yet to say, that unless it were so m'ade, it would be void arid binding in rio one, prostrates erilirely the doctrine of remarking. That doctrine is based upon the principle, that if the remarking be done, in good faith and in reasonable conformity to the calls of the grant, it operates as an estoppel upon all parties; and fixes the lines ás marked, though it afterwards may appear that the original lines were different from such remarking. What is reasonable conformity is a question of fact, which must be decided upon the circumstances of each case. Many cases have occurred, where the old lines not having been known, the lines hav.e been run and marked by the owner, which lines the court has regarded as the boundary of the tract, though the whole lines were .afterwards discovered. If this were not so, no map would be secure in his boundary, where he had remarked his lines, how honestly soever he may have done so. For it might happen, at a great distance of time, after valuable improvements had been made, and after other grants, depending on such remarking for their locality, hapl been issued — that the old lines might be discovered, and a whole neighborhood disturbed in their possessions. ft was to prevent this mischief, that the remarking was put op the ground of estoppel, and not on that of presumption that the true lines were marked. But the remarking, to be valid, must be done in good faith, and in reasonable conformity to the calls of the grant.

In the present case, there is no doubt of the honesty of purpose with which these lines were run and marked. The method, which was pursued to find the north-west corner was the most natural that could have been taken. It required much less labor to arrive at the corner, by reversing the course called for in the grant, and running directly north to it, than to run as the grant calls, east and north and then west to the desired points. And if the courses and distances had all conformed to the calls of the grant, as they had a right to presume, .the one method would have been as certain as the other to ascertain the north-west corner.

We think these lines were run in reasonable conformity yyith the calls of the grant. The calls for course are precisely pursued. The accidental fact, that the first line h longer than the distance called for, constitutes the only reason why there is any discrepancy between the resurvey and the method by \yhich the lines sjhpuld hav.e been run. We think therefore these lines are in reasonable conformity to the calls of the grant.

But it is contended, by the defendant in error, that the resurvey having been made by a party entitled to only a part of the land contained in the grant, and having extended to only part of two lines of the grant, it is of no validity whatever. If this were so, and, as a consequence, that no remarking would be good, unless made by a party owning the entire grant, in a large proportion of the cases, the doctrine would be utterly useless. How many large grants are there in the country, which, having been sold out in small tracts,- are now owned by different individuals? In all these cases, the application of the principle contended for, would make it impossible, by any remarking, to fix the exterior boundaries of any of the tracts, into which such grant would be divided. At any distance of time, they would be liable to have their lines changed by surveys according to course and distance, regardless of any monuments, made by the owners, to perpetuate their boundaries.

But such a doctrine is supported by neither principle nor authority. In the case of Davis’ lessee vs. Smith and Tapley, 1 Yer. 496. Searcy and Nechard ran a portion of the lines thereof, and yet this running was held to be good, and this, though it was afterwards discovered to be considerably varient from the original lines. Nor is there any reason why this should not be so. After the grantee has conveyed part of the land bordering on the exterior lines of his grant, he can have no interest in the manner in which those lines shall be run. Nor can other lines of the grant, than those called for in such deed, be affected by the acts of the owner of the lands so conveyed, so that no injury can result to any one, by the application of the principle of remarking in favor of an owner of part of the lands contained in a grant.

We therefore think the court below erred in the charge to the jury. Reverse the judgment, and remand the cause for another trial to be heard therein, when the cause will be charged as laid down in this opinion.

Reversed and remanded.  