
    
      Robert H. Fulwood vs. A. F. Graham. The same vs. P. McRae and A. Matthews. 
      
    
    It is no objection to the location of a grant, that the quantity is as. certained to be more than four times the amount stated in the grant, or that the lines are prolonged greatly beyond the distances, or that course is sometimes disregarded. ■
    In locating lands, the following rules are resorted to, and generally in the order stated. (1.) Natural boundaries; (2.) Artificial marks; (3.) Adjacent boundaries; (4.) Course and distance. Neither rule, however, occupies an inflexible position, for. when it is, plain that there is a mistake, an inferior means of location may control a higher.
    
      Before O’Neall, J. at Williamsburg, Fall Term, 1844.
    In the case first stated, the report of the presiding judge is as follows:
    “ This was an action of trespass to try titles.
    “ The plaintiff claimed and deduced title from Robert Ful-wood, (his father,) under a grant to him of eleven thous- and five hundred acres, dated 5th of Sept. 1791. Robert Fulwood died in Georgia, in 1822, and by his will devised his whole real estate to be sold, and the proceeds to be divided between his sons Edward and Lewis Fulwood. No sale of the real estate was made by the*executors. Lewis Ful-wood, who at the trial was proved to be in his 29th year, (on 16th Dec. 1837,) conveyed all his interest in his father’s lands in South Carolina, to his brother Robert, the plaintiff. The surveyor, William Campbell, located the plaintiff’s grant. He began at a corner pointed out, and proved by Jonas Matthews to be the corner of the Brownfield and Fulwood grant, at the time he bought from Fulwood, (in, I think, ’94;) he ran thence, two short lines on the Brownfield grant, to the long line running to the Williamsburg line, dividing it from Camden county; to run the course of that line, it would run through the Brownfield grant— finding no mark to justify it, he located the Brownfield grant, and as it was a boundary called for in the Fulwood grant, he took its line instead of Fulwood’s course, and ran to the district line, which the grant called for as a line. The distance of the plat on that line is something like three miles and a half — to reach Blain’s and Graham’s grants, called for as its terminus, it is about fourteen miles. The surveyor ran the line the whole extent; he found the liatural marks called for on it, such as Camp Branch, Little King’s Tree, Big King’s Tree, Long Branch, and Bull Branch, and a branch not named. The greatest increase of the distance was between Brownfield’s grant and Bull branch; from there to Blain’s grant, the distance was about double. At the terminus of the line, the surveyor found Blain’s and Graham’s grants, and pursued them until he reached a point where, according to the plat, he should run to, strike and cross Kingstree swamp ; this he accordingly did, and ran the line crossing . it, as laid down in the plat, and making much the same representation as a boundary. In running the boundary of Blain’s and Graham’s grants, he found Clap swamp, another drain of Long Bay, so called for in the grant’s plat. Having run the boundary on Kingstree swamp, the surveyor, finding no marks, and having no boundary to guide him, took the courses and distances of the plat, until he reached a point where he knew it was necessary to change it, to reach a grant to Charles M'Alister, called for as a boundary ; he did so w.th the least possible change of course, and struck the nearest corner of Chas. M'Alister’s grant — at, however, I think, a great increase of distance; he here took the Chas. McAlister and John M'Alister grants, which were called for as boundaries, and followed them until he struck Isham Nettles’s and Fur-nel Lee’s grants, -called for as boundaries. In this part oí the grant, the Open Bay is represented as lying inside of the grant, except that two of the lines are represented as running into it and cornering. The Open Bay is found lying as represented, except that it is entirely within the grant. Running the lines on the Nettles and Lee grants, they correspond nearly with the course and distances of the plat. The surveyor found the trees marked A. B. C. D. E. F. G. H. K. L. and M. and thought they were marked for the Ful-wood survey. Some of the trees were blocked, and counted the age of the plat. A counts from 50 to 53 years — the course of the Fulwood grant, running from a stump corner, strikes B, and he tlnjue found an old corner marked for the Fulwood survey j the line running to E was too long, (39 chains instead of 9,) a corner was found, the tree blown down, and the sap rotten — the corner, however, remained, marked for Fulwood; he found the corner at F, marked for Fulwood: running from F to G, found a station too young for Fulwood, but blazed fore and aft for that grant — it counted, on being blocked, 53 yéars; running across Wolf bay, the corner H was found, down and decayed ; running the line thence, N. 29 W. there were no marks ; thence turned for the corner of the Lee grant, following Lee’s land ; on the 2d line it. corresponded nearly with the Fulwood in course. The pine corner was too young for Fulwood’s — it, however, is the corner of the Needam Lee, a junior grant, which calls for Fulwood as a boundary; by it the surveyor reached a stake by a pine stump, which he supposed might have been the original corner ; running thence to K, blocked and counted a tree old enough for the grant — thence to L, another tree old enough ; at No 19, he found a corner on the Brpwnfield grant; M is a station (pine) near a branch and bay — they were all found. He said he had no doubt of the location. Johnson and Leggett, the other surveyors, doubted and denied the location. They objected to it, on the ground that out of 68 trees, (corners and stations,) none were found that they admitted to be clearly marked for Fulwood. Hawthorn bay, and Smith’s swamp, and Long Branch, were not noticed in the original survey, yet found on the re-survey. So they insisted that the location could not be right, inasmuch as it did not run into Open bay. Again, they said there was another survey of Charles M'Alister, lying on Tupeloe bay, to which the survey might have looked as a boundary, but that was much further out of the course of the plat than that adopted by Campbell. It was shewn that within the location fixed by Campbell, lay tracts of land conveyed by Fulwood to Jonas Matthews and others, in 1794, or soon after, as parts of his grant. Within the Fulwood grant, and not platted out, were grants to John Ward, (1790,) Wm. Hicks, (1790,) Chas. M'Alister, (in 1786,) and John Burgess, (in 1789.) So, too, an old paper was produced, signed by Robert Fulwood, representing a tract of land as on all sides bounded by vacant land, except where it touched Chas. M'Alister — this was within the location contended for by Campbell on Tupeloe bay — the handwriting of Fulwood’s signature was proved, the date was 1794, May ; it was obviously written long after the plat, certificate and signature, and was not proved to be Fulwood’s writing. A trespass was proved.
    
      
      
    
    S represents defendants’s trespass in the ease against M'Rae & Matthews
    
      
      “ The defendant claimed under three junior grants. 1st, Noah Smith; under this grant, no possession conflicting with the plaintiff’s grant was proved, which could bar the plaintiff’s title. Under the 2d, Bryant Cameron’s grant, the proof was barely sufficient to establish a statutory title. Under the 3d, a grant to P. M'Rae, there was no proof which could affect the plaintiff’s title.
    “The case was submitted to the jury — they found for the defendant. I think the verdict wrong in law and fact.” „
    
      The plaintiff appealed, and now moved for a new trial, on the following ground.
    Because the plaintiff proved, by indisputable testimony, a perfect title to that part of the Noah Smith grant marked A, and to so much of the Philip M!Rae grant, of 1814, as laid within the limits of the Fulwood grant and the verdict should therefore have been for the said plaintiff, whereas, it was capriciously and without evidence given for the defendant.
    In the second case, the report is as follows :
    “ This was an action of trespass to try title. The evidence and facts were the same as in the case of this plaintiff against A. F. Graham, except as hereafter noted. In this case, the defendant’s claim was in that portion of the survey near the Brownfield grant, and where the least doubt could bo entertained about the location. James Matthews said, that for 41 years the land had been called Fulwood’s. Johnson and Leggett, although they doubted and denied Campbell’s location, yet said, if Fulwood had any land in Williamsburg district, it was where the defendants claimed.
    “ A trespass was proved. The defendants gave no evidence of title. It was understood they had a junior claim, which is laid down in Campbell’s re-survy.
    “ The case was submitted to the jury — they found for the defendants; I think their verdict wrong in law and fact.”
    The plaintiff appealed, and moved for a new trial, on the following ground:
    That the plaintiff proved, by indisputable testimony, a perfect title to the land in dispute, and the verdict should have been for him, whereas, it was capriciously and without evidence given for the defendants.
    
      Moses, Sims and Coleman, for the motion.
    
      Munro & Harllee, contra.
   Curia, jser

O’Neall, J.

From the facts stated in the reports, it is as plain as any thing can be made by description, that the plaintiff’s grant covers the portions now in dispute of the immense territory on which it is located.

It is no objection that the quantity is more than four times the amount stated in the grant, or that the lines are prolonged greatly beyond the distances. So, too, it is no objection that course is sometimes disregarded. It is never so done, unless some countervailing matter compels it to yield.

The defendant’s counsel is wrong in supposing that there is any difference in the rulés of location, as laid down and enforced in the older or more recent cases.

They all maintain that in locating lands, we are to resort, 1st. To natural boundaries, 2d. To artificial marks, 3d. To adjacent boundaries, 4th. To course and distance; but it has never been said, that each of these occupied an inflexible position. It sometimes might occur, that an inferior means of location might control a higher, when it was plain there was a mistake. As where a tract of land is represented as lying on one great stream, and the artificial marks or other circumstances shew that it lies upon another. All that is meant is, that the evidences of location which I have mentioned, are resorted to in their order, unless it appears that the representation in the plat depending upon them, is a mistake. In that event, the mistake is to be corrected. The cases referred to by the defendants’s counsel are decidedly against his inference. Take, for example, Bradford vs. Pitts, 2 Con. Rep. by Mill, 115. It maintains, what I have admitted. always, that when a stream is laid down as running through a tract of land, and artificial marks shew that the surveyor laid it down erroneously, the artificial marks are to be followed, and the precise location of the stream disregarded.

In Starke vs. Johnson, 2 Con. Rep. by Mill, 9, Judge Nott affirms the rule, that when boundaries are called for, and are not controlled by natural boundaries or artificial marks, the lines must be extended to them without regard to distance. Still that rule is subject to the qualification which he states, and which I recognized on this trial, that if the distance was so great as to shew that the boundaries called for were merely conjectural, they might be rejected. In Coats vs. Matthews, 2 N. and M‘C. 99, the western line ran five chains beyond Little Saluda, and the eastern line 10 chains ; the plat represented the river as lying within the plat, and yet the line between the western and eastern lines as perfectly straight; if it was so closed, it would throw out a large part of the river, and a considerable quantity of land. It was held, that the line should be run from the termini of the western and eastern lines until it struck the river, and then, that the river should be followed as the boundary. These three cases, without Wash and Holmes, are enough for the plaintiff. For begin at a corner proved by Jonas Matthews on the Brownfield survey, called for as a northern and western boundary, and run out the Brownfield survey, (and about which there is no dispute, except as to its trenching on the plaintiff’s grant,) and it brings us satisfactorily to the Williamsburg line. There is no mistake here. For the corner proved by Jonas Matthews was shewn as the corner of both the Brownfield and Fulwood grants. Running the Williamsburg line, the marked trees cannot be found, but the line is marked by blazes, and there is no dispute about that line. How far did Fulwood and Dunn, the surveyors of Ful wood’s grant, pursue it? The natural marks called for are found — such as Camp branch, Little Kingstree, Big Kingstree, Long Branch, Bull branch, and a branch not named. The greatest increase of the line, is from the beginning to Bull branch ; it is only necessary to double the distance from it, to reach Blain’s and Graham’s grants. There is, therefore, nothing unreasonable in running to them. When we reach them, the rule is, their lines are to be followed instead of the line in the plat; and the boundary being represented as lying the whole extent of the line running east, until it approached Kingstree swamp, the surveyor had two things to guide him, the adjacent and the natural boundaries. When he approached Kingstree swamp, he ran and passed across and through it, as represented. That was exactly what was done in Coats vs. Matthews. He then ran four lines with course and distance, and on his fifth line, he found it was necessary to change his course and disregard his distance, to reach his next boundary. He made the least possible change in course, to reach the boundary. This was yrhat was right, as can be demonstrated. He had run as far as he could upon course and distance, to close the plat. Let the survey stop there. The surveyor must go back, and begin at the pine corner on the Brownfield grant, proved by Jonas Matthews, and come round the other way, running out the lines on the Brownfield grant, and the Furnel Lee, Isham Nettles, John M'Alister and Charles M'Alister lands; having run these, and got to the west corner of the Charles M'Alister grant, as was said by Mr. Johnson, the very intelligent surveyor of the defendants, to whose beautiful small plat I am referring, there is no alternative but to change the course of the plat, and close from point to point. Here, it is in vain to object to the great increase of distance in the line; for the increase on its parallel, the district line, made the increase here inevitable. So, too, it is in vain to talk about running to the M'Alister grant, lying in Tupeloe bay. For that could not close the survey, and.would be an outrageous change of course, nearly reversing that of the plat. Having reached the M'Alister boundary, the lines of it are to be pursued according to the grant to him; thence John M'Alister’s grant, also called for as a contiguous boundary, is reached and pursued until it conducts the surveyor to the point from which he reaches the Isham Nettles grant — and following its boundaries, he is carried to the Furnel Lee grant, and from its boundaries he is carried to a point from which he reaches the Brownfield grant — and pursuing its lines, the beginning corner is reached. Considering the immensity of the survey, it is the most perfect location I ever saw, and it is due to the surveyor, Mr. Campbell, to say that hardly any other man combines the skill, patience and industry, which could have accomplished such a work. On the Nettles, Lee and Brownfield grants, were found artificial marks, corresponding with the Fulwood survey. So, too, the Open bay was found in that quarter, and lying within the survey, exactly as represented, with one exception, that two lines were represented as cornering inside, when in fact they corner outside. This was no objection to an otherwise plain location. Taking the whole case together, we have no doubt that the plaintiff’s grant is located, and that he must legally recover the lands in dispute, except the Bryant Cameron grant, on which the defendant, Graham, proved a possession sufficient to give him a possessory title. The jury having found verdicts in manifest violation of the plaintiff’s right of property, must be corrected in this respect. They cannot give the plaintiff’s land to the defendants. They, like the judge, are bound to conform to the law, and give the plaintiff the possession of his freehold.

The motions for new trials are granted.

Richardson, Evans and Butler, JJ. concurred.

Wardlaw, J. dissented.  