
    John I. Bradford against Jeremiah Pitts.
    ^aLert^ng sirred? Jhiaue to a variety of SJ'oSt’Sr’dS ent matters of evidenc©, and particulanty of cíe* cu“sta“MS'
    This case was tried before Mr. Justice Johnson, at Sumpter, in October Term, 1816, and was an action of trespass to try titles to land. The 1 J plaintiff claimed under a grant to John Francisco, c\ ... . -b p • ni* dated m 1785, and the only question involved m 7 J T-the case was, whether this grant covered the land in dispute? if it did, the plaintiff was entitled to recover; if not, the defendant, who claimed under a younger grant, was so entitled.
    The plat annexed to Francisco’s grant represented the tract as square, with a creek running through it, entering the tract not far distant from the centre of one of the lines, and passing out at the opposite line. The beginning corner and a marked line running from it in the course mentioned in the plat, were found; as was also a station tree on the second line, and by intersecting the first line from this station, the second corner was established at a distance from the beginning, corresponding with the distance mentioned in the original grant: beyond this station no ancient marks were found, and the probability is, that all the others were open lines. To take distance from the beginning corner, or the second corner, as before correctly established, or from the station, the grant would not covet the disputed land, and the form of the tract as represented by the plat would he preserved; but to take distance from the creek, which the surveyors were disposed to consider as a natural station, and therefore to be preferred, on the line on which it entered the tract according to its location in the plat, the line Would be extended so as to cover the land in dispute, and would make the tract an oblong square transverse the creek; and to take distance from the creek on the opposite line where it passed out of the land, it would fall so far short as to make the tract an oblong square in the direction of the creek, and stop far short of the land claimed by the defendant. About fifteen years ago, and in the life-time of Francisco, M-Donald, one of the defendant’s surveyors, had, with his knowledge and in his presence, run and marked the open lines in the manner contended for by the defendant, and though he lived long after, its correctness was never questioned.
    The Jury, contrary to my opinion and direction, found a verdict for the plaintiff, and a motion is now made for a new trial.
   The opinion of the Court was delivered by

Mr. Justice Johnson.

The verdict, in this case, is predicated on what I conceive to be a mistaken construction of rules said to be established in locating lands; they are, 1st, That natural marks or boundaries, are to be preferred to artificial. 2d, That the oldest grant is to be located to the best advantage. Location appears to me to be more a question of evidence than of principié, for it is almost impossible to conceive of a case, when either of these would operate as conclusive, unless it be when a natural, boundary, and not an intervening natural mark, is called for; and even this 1 should not always think conclusive. Suppose, for instance, a surveyor had run, as in this case, one line, and part of another, and distinctly marked them, and had, without closing the lines, called for a watercourse as his western boundary, when, in fact, the watercourse lay at a distance to the east, would it be permitted to the grantee in opposition to conclusive evidence, that the land was located by the marked lines, to shift it from this position to the watercourse, for the purpose of preserving that boundary ? Surely not— if it were, our freeholds would soon become as. ambulatory as their owners. This, however, may be said to be an extreme case, but it answers the purpose of showing, that a blind devotion to this rule would lead to infinite error; and, as applied to this case, it is erroneous in the extreme; every surveyor knows, that small watercourses are designated in the plats annexed to many of the old, and even of the recent grants, without regard to any rule of location; and it would be monstrous to suffer them to control the principle so long and so uniformly acted on,, that in the absence of natural or artificial boundary, the course and distance must determine the location; besides it is evident, in this case, that the creek was delineated without regard to any rule, for, to take distance from it on the opposite line, and the shape of the plat will be distorted in the opposite direction, and leave the plaintiff less land than the defendant insists he is entitled to. it appears to me, therefore, that this rule can never be well applied, except when the mind of the Jury is in a complete state of oscillation as to the question of location, for then, and then only, it ought to govern; because it is not controlled by-more conclusive evidence of location.

The second rule is even more fallacious than the first. If the oldest grant is to be closed to the best advantage, why not, let me ask, include all the surrounding country in it ? If its true lor cation is to be departed from, this is practicable, and would certainly be to the best advantage. The true rule is, that the older grant is to be located in the manner that the highest of it points out, without regard to its influence on those that are of more recent date. In coming at the evidence, the following rules may be service-, able :

1st. The actual marked corners, stations, and lines, ought to be preserved, consistent with the courses and distances; but if they disagree, the former should prevail.

2d. Natural and artificial boundaries ought to be preserved, unless they are controlled by more conclusive evidences of location,

M. In the absence of these, co’urse and distance must determine the location.

4th. Intervening natural marks oüght to be preserved, if practicable, and ought to have their influence on the location, if it appear that they were designated by rule, and are not controlled by other circumstances.

But, after all that can be said on the subject* it is one concerning which no precise and definite rule can be laid down which would not be subject to the infinite variety of exceptions which arise out of mere matters of evidence.

I am of opinion that the motion for a new trial ©ught to prevail.

CokocJc, Cheves, Gantt, and JVbii, J. concurred.  