
    Rench vs. Beltzhoover.
    Appeal from a judgment rendered in W ashington County Court, in 'favour of the plaintiff', (now appellee,) in an action of trespass quare clausum fregii. The close was called Contention. The general issue was pleaded, and plots were made. ,
    1. At the trial íh¡e plaintiff offered in evidence the patent for a tract of land called Long Meadow Enlarged, granted to Daniel puktpy trie 5th of November 175j, reciting that Thomas fresap had, on the 16th of June 1739, granted him a tract of laud called Long Meadows, containing 550 acres; and had, on the 30th of June 1742, granted him another tract pf land cailed The Addition to Long Meadow, for 110 acres; and had, on the 8th of August 1743, granted him another tract called 'Jhe West Addition to Long Meadow, containing 100 acres, &c. That the said tracts were resurveyed by the said Dulany, and a certificate .thereof returned, dated the 1st of August 1746, reducing the whole into one tract callad Long Meadow Enlarged, beginning at the original beginning tree of Long Meadow, and running 69 courses viz. S 12° W 62 perches, then W 584 perches, then N 10° W 106ps. N46° W 104 ps. N 709 W 64 ps. &c, containing 2Í31 acres of land. He also read in evidence the patent for The Resurvey on Dawson’s Strife, granted to Peter Bench the 17th of June 1757, stating that the said Bench was seized in fee simple of a tract of land called Strife, originally, on the 7th of August 1739, granted to one Edivard Dawson for 150 apres8 &c. That the said tract was : • fesurveyed by the said Bench, and a eertificate thereof returned dated the 6th of October 1752, and the tract-called The Re-survey on Dawson's Strife, beginning at the original beginning tree, and running- 101 coursesj the 21st course whereof is as follows, Viz. then N 72° W 170 per’ches to. the, end of 226 perches on the second line of a tract of land called Long Meadow, and running with said land 'W 358 perches, N 10°' W 106 ps. N 46° \Y 140 ps. N &c. containing 2345 acres of land. He also offered in evidence the patent of a tract of land called Contention, granted to George Peltzhoover on the 11th of October 18C5, surveyed under a special warrant on the 9th of May 1804,be-ginning at the end of the 2d line of Long Meadow Enlarge ed, granted to D, Dulany, and running with said line E 575i ps. to the 45th or S 64? E 162 ps. line of Long Meadow Enlarged, granted to Henry lioqvet, and with said line S 64 E 4 ps. to the fourth line of Continuation of Friendship, and .with said line reversed, W 8 ps. to the epd of the 3d line of said land, and reversing said line § 59á° E 147 ps. S 70° W 4i ps, to the end of the N 50 ps«, line of The Resurvey on Dawson’s Strife, N 72° W 170 ps. W 330 ps. thence by a straight line to the beginning, containing 81 acres. Also the patent of a tract of land cal!-? ed Long Meadow, granted to Thomas Cxesap on the 16th of June iy,S9, beginning at a bounded red oak standing on the west side of Neal’s Meadow, below tbe mouth of a drain that comes out of a great pond being in the Siiid land, and running thence N 75° W 2Ó0 perches, then N 21° TV 140 perches, then, &c. containing 550 acres of land. Also the patent of a tract of land called' Continuation of Friendship, surveyed on the 3d of July 1770, and granted to Samuel Hughes on the 2d of January 1771, beginning at the end of 10 ps. in the 15th line of The Resurvey on Dawson’s Strife granted to Peter Bench the 17th June 1757, and running thence N 72° YV 104 perches, S 70° W 82 ps. N 59¿ W 147 ps. E 35 perches, S 64° E 108 ps. N 70° E 82 ps. S 7201 E 106 ps. then with a straight line to the beginning, containing 51 acres of land. Also the patent of a tract called Downey’s Lot, Surveyed on the 1st of October 1742, and granted to Robert Downey on the 13th of July 1743, beginning at a bounded walnut standing in a-glade about a quarter of a mile from tlie said Downey’s house, and running thenpe S. 66° W. 60 ps..then N. 70° W. 20 ps. then N. 26° 13. 100 ps., then N. 56 ps. then N. 70° S. 82 ps, then by a straight line to the beginning, containing 50 acres. Ee then proved the trespass cornpiainéd of; and gave in evidence the plots, explanations, and his locations, and proved that such locations were true. The defendant then offered in evidence the patent before mentioned of Long Msa.loio, granted to Thomas Cresnp the 16th of June 1739. Also the patent of Long Meadow Enlarged, granted to Henry Boquet the 16th of September 1763, reciting that he was seized by purchase of and in a tract oí1 parcel of land called Long Meadow, lying, &c. originally on the 5th of November 1751 granted unto D. Dulany for 2131 acres. That on the 9th of June 1752, Dulany obtained a special warrant to resurvey the said tract, with liberty to include any contiguous vacancy. In pursuance of which a resurvey was made, and the certificate thereof returned into the land office, by which it appeared there was the quantity of 2370 acres of vacant land added, which certificate of resurvey the said Boquet purchased. That the lines of the tesurvey interfering with other lands, caveats had been entered by different persons against patent issuing thereon; that Boquet being willing and desirous to settle and adjust the said disputes, prayed a special warrant to resurvey the aforesaid tract of land called Long Men* dow, with liberty to correct, &c. warrant accordingly issued 16th April 1763, ¿nd certificate of survey dated the fth of May 1763 returned, called Long Meadow Enlarged, Beginning, for the outlines of the resurvey of the whole, at the beginning tree of a tract of land called Downey’s Contñvance, taken up by William Downey, and which said beginning tree does stand N. 82° E. 26 ps. from the end of the 55th line of the original of this present resurvey, and running thence N. 88¿° W. 36l ps. S. 15° W 46 ps, &c. containing 4163 acres of land. Also the patent of Long Meadow Enlarged, granted to Daniel Dulany on the. 5th of November 1731, as before mentioned. Also the patent for The Resurvey on Dawson’s Strife, granted to Peter Bench on the 17th of June 1757', and also before mentioned. The defendant than offered parol testimony to prove that the tract called Long Meadow Enlarged was known in the country before the original survey of The ResUrvey on Dawson’s Strife, and was also called in the proceedings in the land office by the name of Long Meadow, and hád acquiree! that name by reputation before the' said original survey of The Resurúéy on Dawson’s Strife, The plaintiff objected to this evidence on the ground, that it tended to vary or contradict the.call in the 21st line of The Resurvey on Dawson’s Strife, and prayed the opinion of the court, and their direction to the jury, that there was no ambiguity on the face of the certificate and grant in the call of the 21st line of The Resurvey on Dawson’s Strife to Long Meadow \ and that no parol or other proof could be admitted to vary or contradict the grant as to that call, and that the jury were bound to go to the potrit called for, if it was possible to do so, and if impossible to gratify that call, that then the same .must be rejected, and the course and distance adhered to with or without correcting variation. The Court [Shriver, A. J.j sustained the objection, and gave the direction to the jury as prayed. The defendant excepted, &c.
    
      Parol evidence! is ¡uliuissib.e to prove that a tract of land has atquir» , éú a name by u* lunation, different from its jmtenr name, and a reference to it by its acquired name in y&ubse- : quent giant. by May oí call, is a • Rood and lecal reference.
    it is the pro* vinco of the court to determine on the true construe* Don and operation .0* grants, anti wht thtra call in 4 grant is to be «ratified or not, and in vvjiat manner, a«<ii <>i thejmjNto inni facts, ami asiertmn ihi: true p¡ace ended ior m a K»ant, recording to the evidence.
    
      2. The defendant then prayed the opinion of the court, that if the jury were of opinion from the evidence that Long Meadow Enlarged, located on the plots, was generally known in the neighbourhood by the name oí Long Meadow, at the time The Resurvey on Dawson’s Strife was taken up, and had also been referred to by said name in proceedings of the'land office, and in other patents, and particularly in the patent of Long Meadoio Enlarged granted Henry Boquet, and that the call in The Resurvey on Daioson’s Strife, to the second line of Long Meadow, was meant and intended to be the second line of Long Meadow Enlarged, that then the jury might so find, and regulate their verdict accordingly, But the court refused to give this opinion prayed by the defendant, because no ambiguity appearing on the face of the grant of The Resurvey on Dawson’s Strife, no evifence de hors the g'-ant could be admitted to control or vary the call expressed in its 21st line; but were of opinion-, and so directed the jury, that if the jury found there was no such point as was called for.in that line, then said line must be run the course and distance expressed in the grant, with or without variation. The defendant excepted.
    3. The defendant then prayed the court to direct the jury, that it was a matter pi-oper to be decided by the jury, whether the call in The Resurvey on Dawson’s Strife, to the end of 226 perches on the second line of L,ong Meadoic, and running with the said land, was a call possible to be gratified or not. The court refused to give the direction; but were of opinion, and instructed the jury, that if they found there were not 226 perches in the second line of Long Meadow called for in the grant of The Resurvey on Dawson’s Strife, that in law the call could not be gratified, and they must run course and distance as to that line, with or without variation. The defendant excepted.
    4. The defendant' then prayed the court to direct the jury, that the call in the 21st line of The Resurvey on Dawson’s Strife, to the end of 226 perches on the second line of Long Meadow, and with said tract, was a call to Long Meadow, although there were only 140 perches, not 226 perches, in the second line of Long Meadow, and that the jury might locate The Resurvey on Dawson’s Strife so as to run the twenty-second line of said land with Long Meadow .But the court refused to give this direction, being of opinion that the 22d line was a dependent location, of the 21st, and must commence where the 21st ended; and that if the call in the 21st line could not, under the opinion of the court already given, be gratified, that then the 22d must commence and run from where the jury should find the 21st ended, according to the course and distance, with or without variation. The defendant excepted; and the verdict and judgment being against him, he appealed to this court. '
    The cause was argued before Chase, Ch. J. and Nicholson, Earle, and Johnson, J. by
    
      Martin, for the Appellant;
    and by
    Key, for the Appellee.
    They referred to Smith’s Lessee vs. Volgamot & White, 2 Harr. & M‘Hen. 155. Webb’s Lessee vs. Beard, 1 Harr. & Johns. 349; and Carroll et al. Lessee vs. Norwood, in this court, at December term 1812
      .
    
    
      
      
         See 5 Harr. & Johns. 163.
    
   Chase, Ch. J.

delivered the opinion of the court. On the first bill of exceptions.' The court are of opinion, that the learned judge below erred in refusing to admit parol evidence to go to the jury, to prove that the tract of land called Long Meadow Enlarged, granted to Daniel Dulany toi the 5th of November 1751, was known, sad had ac.« qiured tlie name, by reputation, of Long. Meadow. The 'court being of opinion, that Long Meadoiu EnlargSd was capable of acquiring the name of Long Meadow by reputation, and the reference to it by way of cail was a good and legal reference;.and if tbe jury found that'Long Meadow Enlargtd was known, and had acquired by reputation the name of Long Meadow, they were bound, in locating The llesurvey on Dawson's Strife, to run the 2tst course of that Fact, to wit, N 72° W. 170 ps. to the terinination'of 226 perches on tbe second line of Long Meadow Enlarged, and the subsequent courses specified in. The Resurvey on Dawson's Strife, accordingly.

The court dissent from the opinions expressed by the court below in the first'&nd second bills of exceptions.

■On the third bill of excéptions. The court are of opinion, that it exclusively belongs to the power and jurisdiction of the court to determine on the true construction and operation of grants, and whether a call in á certificate of survey is to be gratified or not, and in what manner; and that it exclusively appertains to the province of the jury to find facts, and ascertain the true place or point called for, according to evidence legally admissible by the court»

The court concur with the court below in refusing to give the'directions prayed in the third and fourth bills of exceptions.

JUDGMENT REVERSED.  