
    James Surget vs. Peter Little.
    In an action of ejectment the boundary of the property in controversy is always provable by parol.
    In an action of ejectment a survey of the premises in controversy, made prior to the institution of suit, even though made by an order of court in another suit between other parties, is not admissible in evidence.
    A private survey, made ex 'parte, without order of court, is inadmissible evidence in an action of ejectment, to establish boundary..
    Copies of the official maps of the surveys of lands in this state, deposited in the surveyor-general’s office, are the best evidence of the extent, character and boundaries of such surveys; and therefore parol evidence that a private survey conforms to such official survey, without producing the copy of the official survey, is improper.
    In error from the Adams circuit court; before the Hon. C. C. Cage, judge.
    John Doe, on the separate demises of Anna M’Comas, and of Peter Little, sued Richard Roe, in ejectment, in the circuit court. The locus in quo was described in the declaration as “ six houses and lots in the city of Natchez, bounded on the north by the street called Porter street, on the west by the Mississippi River, and east by Silver street, with the appurtenances.” James Surget, Patrick Caroline, David F. Mobley, William Harris, Joseph Cohen, Dominique Arighee, F. Popkins, and Andrew L. Wilson, were regularly made defendants. A trial was had, and a verdict rendered for the plaintiff, and a writ of habere facias possessionem awarded.
    Two bills of exception were signed during the progress of the trial, and one to a refusal of the court to grant a new trial. But, as the whole ground of the decision of the court is covered by the first bill of exceptions, that only will be noticed.
    The plaintiff below read a patent signed “ James Monroe,” from the United States, to fractional section number seventy-seven, in township seven, range three, west, containing twenty-one acres and eighty-four hundreds of an acre, to the legal representatives of Henry Willis, deceased. The patent, on its face, purporting to be issued under an act of congress, passed on the 8th day of May, 1820, entitled “ an act for the relief of the legal representatives of Henry Willis,” and also an act emendatory of the same, passed on the 29th day of December, 1820.
    Little then read to the jury a deed from J. H. M’Comas,- and Anna, his wife, who was admitted’ to be the only child of Henry Willis, to Gamaliel Pease, to the same land, dated November 15, 1820; and a deed from Gamaliel Pease and wife to him.
    The deposition of Levin Wailes was then read to the jury. He testified that he had knowledge of the section of land in controversyhad frequently seen the plan or diagram of it as it was projected on the proper township map, in the office of the surveyor of public lands, when the records of that office were under his charge, as surveyor-general; that he knew the lines of the section on the ground, having himself made a careful survey of them, being governed in his survey by the courses and distances inserted on the plat, of which an authenticated copy was had from the office of the register of the land office at Washington, and from the acknowledged lines of the adjoining lands. That in the diagram, marked Projection No. 1, (which was attached to his deposition) to a certificate on which his name was subscribed, the section seventy-seven, in township No. 7, of range 3, west, was correctly and truly represented by the lines shaded blue. [As the point on which the decision of the court turned does not involve the boundaries of the land in controversy, nor bear upon the merits of the case, it has not been deemed requisite to insert or take other notice of the plats referred to by the witness, than to state that such plats as he describes were appended to his deposition, and- enrolled in the record.] The witness further deposed, that, in- making his survey, he commenced at an angle formed- by the intersection of two of the blue lines, marked with the letter C, which was at the gallery post of a house formerly occupied by Deadrick Brill, and which was a corner common to several adjacent tracts of land held under'grants from the Spanish government; and was a point which he had never heard controverted, or doubted to be the true corner of those lands,’and also of section, seventy-seven.
    In answer to the question, if he knew of any land within the limits of the plaintiff’s claim, which was held under any title not derived from the plaintiff’s grant? he stated that he knew of none except a grant in the name of Rebecca M’Gabe, which he had also surveyed-in accordance with the courses and distances given on the plat of that land in the register’s office, and which he had represented correctly on the diagram filed with his deposition, within the lines shaded yellow. That he had known the lines of Rebecca M.’Cabe’s tract for several years, and had never heard it questioned that the point marked B. in the diagram was one of the corners in the grant; that point was shown to him by Colonel James Foster, in the year 1826, when, at his request, he made a survey for the purpose of verifying the limits of a road laid down by an ordinance of the selectmen of the city of Natchez. In March, 1826, the house called Boleau’s house was standing ; in 1830, he made a survey of those lands, under an order of court, in a suit between P. Little and Benjamin Brustic, and the house of Boleau was then standing; some years afterwards he made another survey of the same premises, by an order of survey, in a suit between P. Little, B. Wade and others, at which time there was a new house on the same ground that had been occupied by Boleau’s house; the new house was built by George Ralston, had been since burned down, and the lot at that time was vacant.
    The witness, in answer to other direct interrogatories, stated, that at the request of the plaintiff in the present suit, he did, on Tuesday, the 14th day of the then month, December, 1841, measure from the point marked B. in the diagram, along the street to the point marked G.; that from B. to G. was two hundred and ten feet, ten inches, and from F. on the lower line of Rebecca M’Cabe’s grant to G. was forty-four feet, six inches. In a paper marked Projection 2, the witness stated, he had given the representation of Rebecca M’Cabe’s lot, from his own survey of it made in conformity with the plat obtained from the register’s office, taking the corner of Joseph Boleau’s house as the southeast angle of that lot; that in that diagram he had given the courses in both French and English measure; that he had not any means at hand of accurately computing the area of the lot granted to Rebecca M’Cabe, without consuming more time than he could devote to it. That for some distance the northeast limit of section 77 corresponds with the southwesterly limit of the city of Natchez. That the plats to which his name had been subscribed were, to the best of his judgment, correct representations of the claims of the plaintiff and the defendant, if, as he understood, defendant’s claim was confined to Rebecca M’Cabe’s grant. That he had ■first surveyed those lands in the year 1830, in a suit then pending between Peter Little and Benjamin Brustic, defendant; and also made a verification of the same survey under an order of court, returnable to April term, 1838, in a suit between P. Little and Richmond Bledsoe.
    In answer to cross-interrogatories, he stated that he knew nothing of the original survey of Rebecca M’Cabe’s lot;- its particular location he only knew from common report. That in his various surveys, since 1826, he had never heard it doubted that the point noted as the corner of Boleau’s house was the southeastern angle of Rebecca M’Cabe’s lot, and all his surveys were made with reference to that corner. That a house called the Kentucky Tavern was nearly all on M’Cabe’s lot. That his only knowledge of high-water mark on the Mississippi River was from his own surveys, and he believed he had properly represented it.
    This was all of Wailes’s deposition. The defendant objected to various answers in it; 1. For the non-production of the survey of fractional section No. 77, returned by the surveyor-general, and referred to in the patent from the United States government, as part of the description of . the land granted. 2. Because there was no evidence that the answers and projections filed corresponded with the true boundaries of section 77; and 3. Because the surveys of Wailes were made without any order of court appointing him surveyor, or without notice to the defendants, were wholly ex parte, and at best but secondary. The court below overruled the objections, and exceptions were immediately taken and signed.
    The further progress of the case is not noticed, not being illustrative of the opinion of the court. After a verdict for the plaintiff, and his motion for new trial overruled, the defendant prosecuted this writ of error.
    
      George Winchester, for plaintiff in error.
    The court below erred in permitting that part of the deposition of L. Wailes, relating to the boundaries of fractional section 77, Range 3, west, to be read as evidence without first producing the survey or a copy thereof, of the surveyor general referred to in said patent as descriptive of the land conv^red.
    It is an obvious principle that a grant must describe the land to be conveyed and that the subject granted must be identified by the description of it in the instrument itself. 3 Pet. R. 96.
    What are the boundaries described in a deed are questions of law. The place is a matter of fact. 4 Hawks. 64; 4 Mon. Rep. 63; 1 Dev. & Bat. 425.
    It certainly was requisite for the plaintiff below, before he could introduce evidence to identify and locate the land, to establish what the boundaries were of the land to be conveyed by said patent.
    The only competent evidence to establish the boundaries would be the production of the survey of the surveyor general, or a copy thereof. The patent contains no other description of the land conveyed, than the reference to the number of the section, as returned by the surveyor general. If no such survey existed at the date of the patent as the one referred to, or if such survey contained an insufficient, description of the land intended to be conveyed, then is the. patent void for uncertainty and want of precision. It certainly was not competent for the plaintiff to introduce the testimony of Wailes to vary, add to,, or cure any defect in the description of the land intended to be conveyed by said patent. Much less could his testimony make out and supply a description which was wholly wanting in said petition'.
    The survey itself or a copy thereof is the only competent evidence to establish the boundaries of the land to be conveyed.
    
      “ Where premises are described in a deed, as those purchased of A., held, a deed from A. to the grantor must be produced. Parol' evidence not admissible.” Jackson v. Parkhurst, 4 Wend. 369.
    What is the testimony of L. Wailes? “That he has a knowledge of fractional section 77; has seen a plan or diagram of it; and that in diagram marked Projection No. 7, he has correctly represented said section.”
    This certainly does not establish -the boundaries of fractional section 77 as contained in said patent. The patent does not convey fractional section 77, as known by L. Wailes, or as seen by him on the plan or diagram of it, or as projected by him in diagram marked No. 1. The boundaries of the said section contained in said patent cannot be established by any such extrinsic testimony. The reference in the patent for a description of the section is to the survey of the surveyor general. Wailes does not, in his deposition, say he ever saw the survey referred to in said patent. Nor does he attempt to show what that survey contains, or that his survey, marked Projection No. 1, corresponds in any particular with the original survey. 3 Marsh. 570, 573, 577, 190; 4 Bibb, 133.
    2d. The court erred in permitting that part of the deposition of L. Wailes, which relates to the boundaries of the R. M’Cabe grant and the surveys of the same, to be given in evidence to the jury, because said surveys were made without any order of court and without notice, and were wholly ex -parte and at best but secondary evidence.
    Anciently, the plaintiff was bound -to give the defendant a view. For convenience the modern practice is adopted, to have a plan taken under a rule of court by a surveyor appointed by the court, or agreed upon by the parties, who is sworn to the faithful execution of the trust, as are also the phain-bearers. And his duty is to give notice to the parties, and to mark on the plan any monuments or lines which either of the parties shall request. A plan taken ex parte can never be used but as chalk unless by consent. Bearce v. Jackson, 4 Mass. 408; Jackson v. Vandyke, Coxe, 28'.
    
      Montgomery and Boyd, for defendant in error.
    The first exception was to the admission of Wailes’s deposition, as competent to prove the boundaries of the plaintiff’s land, and Rebecca M’Cabe’s grant. This question was settled in a case between Bledsoe and Little, 4 How. R. 13, in which the evidence was decided to be competent.
    He states positively, that he knew the location of the section from having surveyed it in conformity with the maps from the register’s office, &c. The maps from the land office, if produced, would not be better evidence of the location of the land, than Wailes’s deposition. The evidence is of the same degree, and the jury were the proper judges of the credit to be given to Wailes’s statements. The same remarks apply to the proof of the location of the M’Cabe grant. But if the maps had been produced they would only have proved the plan of the location, and not the location itself. Wailes’s testimony would have been necessary still to prove the particular land on which the location was made. The description of the land in a deed is only a means of identifying the land granted; the particular land must be proved by parol. 1 Marsh. R. 253; Ibid. 96; Ibid. 365; 4 Bibb. R. 51, 399; 1 J. J. Marsh. 448 ; 6 Mon. 182.
    The objection urged against Wailes’s survey, that it was made without an order of the court, and without notice to the defendant, was not tenable. A witness is always competent to testify to facts within his own knowledge, no matter how he acquired the knowledge; and he may use memoranda made by himself to refresh his memory, and may exhibit diagrams and maps to the jury, to illustrate and explain his meaning. It is not necessary that a survey should be made under an order of the court, except for the purpose of furnishing the court and jury with maps, showing the pretensions of the parties, iq. which case notice of the survey must be given, so that each party will have an opportunity of having lines run and-marked on the map, according to his pretensions. And this is seldom resorted to except in cases of conflicting boundary. In this case there was no confliction of boundary, the defendant’s land was surrounded on all sides by the land granted to the plaintiff, and it was only necessary to prove the general location of the plaintiff’s land, and that the land in controversy was within that boundary, without showing the exact lines of the survey, none of which came near the land in dispute. The only survey, the exact lines of which are of any importance, was the survey of the lot claimed by defendant, and it was his duty to bring proof of the precise location of those lines. The plaintiff, to forestall the defendant, produced evidence of the location and boundaries of the lot, which he had a right to do, either in chief, or as rebutting testimony. The defendant did not offer any evidence, other than the evidence of Wailes, of the location of the grant under which he claimed. Consequently, if that evidence be excluded, then the case appears to be. undefended, or at least no title Js opposed. The defendant, however, submits to Mr. Wailes’s statement as to the location of the M’Cabe grant, and attempts to show, from the papers and condition of the land at the time the grant was given, that it was extended to the river. There are no calls on the map annexed to the grant, except for courses and distances. The place of beginning, and all the corners are left unexplained, and there is no reason, except those given by Mr. Wailes, for locating it within the section claimed by Little. The memorandum on the edge of the map next the river, that “the water came there in times of overflow, or in high water,” means no more than what the witnesses state, that it was low land, lower than at the immediate bank of the river, and that in times of high water it was overflowed before the immediate bank. And it would contradict all the testimony of the defendant’s witnesses to construe such memorandum to mean that, the lot should be bounded on that side by the river. The map calls for but a few feet, and the real distance was ten times as far as that called for on the map.. Such mistakes' might have occurred in the survey of a large tract of land, in a rough, unsettled country, but it is preposterous to suppose any such mistake could be made in surveying a small lot in a town. Besides, the courses and distances of all the lines are given, and the survey closes without a material departure on any line from the course and distance called for in the original survey, as will be seen by reference to Wailes’s map.
    
      G. Winchester, in reply,
    
    cited the following authorities: 4 Wend. 369; Lessee of James v. Stalcey et al. 1 Wash. C. C. R. 332; Evans v. Griffith, Peters’s C. C. R. 166; Chirac v. jReenecner, 2 Peters, 619 ; Pollard and Pickett v. Dwight et al. 4 Cranch, 421; The United States v. Delespine’s Heirs, 12 Peters, 654; Blake et al. v. Dogherty, 5 Wheat. 359; Doe, dem. Rice v. Schenclc, 2 Dev. R. 415; Adams v. Rockwell, 16 Wendell, 285; Ibid. 302; Tymason v. Bates, 14 Idem. 671; Ibid. 680; Ibid. 696; Boardman v. Reed’s Lessee, 6 Peters, 341; 13 Pick. 291; 6 Mass. 131; 16 Pick. 235; Poindex-ter’s Code, 510, § 10 and 11; 1 Story’s Laws, 422, 423, § 1 and 2; Rev. Code, 190; M'lver v. Wilkes. 4 Wheat. 444 ; 4 Ccmd. R. 501; 7 Wheat. 7; 5 Cond. R. 206; 3' Peters, 96; Van Wyche v. Seward, 1 Edw. Ch. Rep. 371; Davis v. Raensford, 17 Mass. 211; 3 Phil. Ev. 1379, Co wen & Hill’s ed.; Doe ex dem. Tish-ho-mah, 4 S. &M. 40; 3 Peters, 96 ; 17 Mass. 211 ; 4 Wend. 369; 4 Mass. 408; 12 Wheat. 587; Land Laws of United States, Part II., 161; 4 How. R. 286; 17 John. R. 197.
    
      
       Judge Winchester's argument in this case exceeded thirty-three pages, and was, therefore, under the rule, excluded.
    
   Mr. Chief Justice Shaekey

delivered the opinion of the court.

This was an action of ejectment brought by Little against Surget for a lot of land, being part of section No. 77, in township No. 7, of range No. 3, west, in which- the plaintiff below succeeds. The questions relied on for reversing the judgment are presented by three bills of exceptions, two of which were taken during the progress of the trial, and one to the judgment of the court, given in overruling a motion for a new trial.

The plaintiff introduced his title papers, consisting of a patent to the legal representatives of Henry Willis, for the section of land described in the declaration, and also mesne conveyances down to a title to the plaintiff. The deposition of Levin Wáiles was then introduced, accompanied by a survey referred to in his answers to the interrogatories. The object of this deposition was, to prove the actual boundary of the land conveyed by the patent, and as its admission constitutes the principal objection, it requires particular attention. The witness was asked if he had any knowledge of the land claimed by the plaintiff, as designated by the section No. 77, in township No. 7 of range 3, west. '

To this he responded that he had a knowledge of that section, having frequently seen the plan or diagram of it, as projected in the proper township map in the office of the surveyor of public lands, when the records of that office were under his charge as surveyor-general. He also knew the lines of the section on the ground, from a careful survey of them, in which he was governed by the courses and distances inserted on the plat, of which an authenticated copy was had from the register of the land-office, at Washington, and from the acknowledged lines of the adjoining lands. That.in the diagram marked Projection No. 1, to which deponent’s certificate was attached, the said section was correctly and truly represented by the lines shaded blue. The witness then stated that, in making the said survey, he commenced at an angle formed by the intersection of two of the blue lines, marked C, which was a corner common to several adjacent tracts of land, and a point which he had never heard controverted or doubted as such corner, and also of the section No. 77. In the next answer the witness proceeded to state that he knew the lot granted to Rebecca M’Cabe by the Spanish government, which lies within the boundaries of section No. 77, which knowledge he had also acquired from actual surveys, according to a copy of the survey from the register’s office, which lot was also correctly represented on his diagram by the lines shaded yellow. The witness had made two surveys of these lands, one in 1830, by order of court, in a suit between Little and Brustic; and some years afterwards another, by order of court, in a suit between Little and Wade. That, at the request of the plaintiff, he had recently measured along the street, from the point B to G, and found the distance to be two hundred and'ten feet. In Projection No. 2 he had given •the representation of Rebecca M’Cábe’s lot, from his own survey, made according to a plat from the register’s office. The Rebecca M’Cabe lot is the land claimed by defendant, and the recovery seems to have been sought, because he had possession of more land than hé was entitled to; and we have given enough of the evidence to show the force of the objection made, to the deposition.

The answer to the first interrogatory was opposed as evidence of location and boundaries, on the ground that the plaintiff had not produced the survey of fractional section 77, as contained in the surveyor-general’s office, or a copy thereof. The answers, in reference to the Rebecca M’Cabe lot, were objected to, because the surveys were made without any order of court appointing Wailes surveyor, and without notice to defendant; and also because they were wholly ex parte.

So far as the witness speaks of the boundary from his own knowledge, his answers are certainly free from objection. Boundary is always provable by parol; indeed it is not uncommon to resort to reputation to establish boundary. The grant or patent may describe the land; but extrinsic evidence is necessary'to apply the grant to the thing granted. The lines actually run on the land' have a controlling influence, and they can be identified only by parol testimony.

But there is another part of the deposition which presents more difficulty. The witness refers to two maps, the first representing a survey of section 77, and the second representing a survey of the M’Cabe lot. It does not appear certainly when these plats were made. It is certain, however, that they must have been made some time before- the trial. The witness speaks of them as representing truly the lands described, and his knowledge is predicated on actual surveys previously made, but whether these plats were made at the time of making the surveys, does not appear. If we could regard them as having been drawn out at the time of testifying, as mere explanations of the answers, they would perhaps be unobjectionable, as mere parol evidence; for, as boundary may be proved by parol, it would seem to follow that suitable explanations, made at the time of testifying, by a diagram or otherwise, would also be admissible. But if they are to be considered as mere private surveys, made without an' order of court, and without notice to the opposite party, then they are objectionable, and so we think they must be regarded. The witness says, “ that in the diagram marked Projection No. 1, to a certificate on which my name is subscribed, the said section No. 77, in township No. 7, of range 3, west, is correctly and truly represented by the lines shaded blue. That, in making said survey, I commenced at an angle formed by the intersection of two of said blue lines,” &c. Again, “ in 1830 I made a survey of those lands, under an order of court, in a suit between P. Little and Benjamin Brustic.” “ Some years afterwards I made another survey of the same premises, by an order of survey, in a suit between P. Little, B. Wade, and others.”. These, and other like remarks of the witness, induce the impression that these plats are the result of some of those previous surveys, or that they were projections taken from those surveys. In either case they were inadmissible, even though the other surveys may have been made under ah order of court between other parties. As to these parties, such surveys are no better than any other private survey. Whether a private survey is admissible to establish boundary, we shall see by adverting to the adjudged cases.

In the base of James's Lessee v. Stookey, 1 Wash. C. C. Rep. 330, a diagram of the land in controversy was offered, but as it was intended to show the boundary of the land, and was not made under the authority of the court, it was ruled out.

In Chirac v. Reinecker, 2 Peters, 619, a map contained in a book of maps was offered as evidence, but ruled out because it was not authenticated. Being unauthenticated, it tvas no better than a private survey, and therefore not evidence; and to the same effect is the case of Blake v. Doherty, 5 Wheat. 359. The case of Griffith v. Evans & Lewis, Peters’ C. C. Rep. 166, decides that a survey made without an order of court, is an ex parte proceeding, and inadmissible.

In the case of Bearce v. Jackson, 4 Mass. Rep. 408, the plaintiff offered in evidence a plan of the land described in the declaration, accompanied by the oath of the surveyor who drew it, attesting its accuracy. Parsons, C. J., remarked that a plan taken ex parte can never be used, except by consent.

In the case of Gerrish v. Bearce, 11 Mass. R. 193, a surveyor was offered to prove that he had, some years before, surveyed the land by order of court in another action, and that his survey gave a different result from that made by the surveyor appointed by order of court in the cause, and this testimony was refused, on the ground that a surveyor had been appointed by order of court, whose survey was an official act and better evidence. See also 1 Dallas, 19.

We have not here referred to any authorities the other way, and none have fallen under our observation, except the case of Jones v. Bache, 3 Wash. C. C. Rep. 199, which was not an action of ejectment. It is contended, however, that this same point was decided in the case of Bledsoe v. Little, 4 How. 13, but this is a mistake. The two cases differ in two important particulars. In the first place, in that case Wailes made the survey or projection under an order of court. It appears, from one of his answers to these interrogatories, that he then acted under an order of court, and we evidently considered his survey as having been so made. But again, when called on to testify, he produced his own diagram, and also a copy of the land-office map, and -stated that his survey embraced fractional section 77, mentioned in the patent, and this we said was conclusive. Here no copy of the official map is produced, and that is the very thing the defendant complains of, so the cases are entirely different.

We know, judicially, that most of the lands in the state have been surveyed, and that official maps of the surveys are deposited in the surveyor-general’s office, and, bydaw, copies taken from those maps may be used in evidence. The plaintiff introduced a survey, and undertook to prove that it conformed strictly to the map or survey in the land-office. Whether if did so conform was a question for the jury, and it was susceptible of better proof than that which was offered. A copy of the official map would have shown the conformity of Wailes’s survey in the proper manner. This point is decisive of the case, and we have therefore deemed it unnecessary to notice the other questions raised.

The judgment must be reversed, and the cause remanded.  