
    *Doganv. Seekright, Lessee of Landon Carter.
    Wednesday, May 24, 1809.
    1. Deeds — Natural Boundaries — Course and Distance. —Natural or reputed boundaries, or lines of marked trees, oug-iit to be established, in preference to mere course and distance, or to mistaken descriptions in surveys or conveyances.
    2. Instructions-- — Marked Line Should Prevail over Unmarked. — It. seems to be matter of law, on which the Court, if either party require it, should instruct the Jury, that a marked line shall prevail over one which was never marked.
    This was an action of ejectment brought by the appellee against the appellant in the District Court. At the trial a bill of exceptions was signed and sealed, disclosing the following matter.
    The lessor of the plaintiff offered in evidence, 1st. A patent, dated in 1724, to Dan-don Carter, George Carter, Dewis Burwell, Carter Burwell, Robert Burwell, Mann Page, and Carter Page, for 41,660 acres of land; 2d. A record from the General Court of the proceedings in a suit in Chancery instituted in 1738, by Dandou Carter against the other patentees, for partition of that land; from which it appeared that partition was made by Commissioners appointed for that purpose, (the surveyor attending,) by certain metes and bounds, according to a plat returned to the Court, which partition the Court confirmed. The plat returned by John Grant, the surveyor, under date of October 3d, 1739, exhibited the area of the whole tract to contain 38,553 acres. According to an explanation of his, accompanying the plat, the dividing line M. C. between Landon Carter’s lot, and Mann Page’s and George Carter’s lots, began “at a white oak, marked R. C. near John Young’s plantation, being a corner tree of the patent, and ended at another white oak on Piney Branch, another corner of the patentand the dividing line I. P. between Mann Page’s lot, and Lewis Bur-well’s and George Carter’s lots, began at a white oak marked R. C. on a high bank of the south branch of Bull Run, and ended at a white oak near Bull Run, in the line M. C. on a stony hill.”
    The lessor of the plaintiff moreover exhibited the will of Landon Carter, one of the said patentees, duly recorded on the 1st of February, 1779, in which he devised the part allotted to him to his sons, Landon and John Carter, (of whom Landon was the lessor of the plaintiff,) and'^moreover proved that, if the line A. P. described in the plat of a survey by Charles Kemper, made in this cause by an order of Court, (corresponding with the line M. C. in the division plat,) were established, it would include the lands for which this ejectment was brought, which then would fall within the bounds of the land devised to him.
    On the part of the defendant, proof was offered and admitted, that Grant, the surveyor aforesaid, ran a line in the woods from an oak marked L. C. (in a line of the patent,) represented by red a in another plat of a survey, by Henry D. Hooe, also made in this cause by an order of Court, to a white oak, represented by red c, near Bull Run, on a stony hill; that the said Grant also ran a line from the last mentioned oak to the white oak marked R. C. on the high bank of the south branch of Bull Run, as mentioned in the report to the General Court as aforesaid; that the two lines so run in the woods were plainly and distinctly marked and cornered; that the other division lines represented in the plat from- the General Court, were run and marked in the woods by the same tool that marked the two lines last particularly described ; and that no lines were proved to have been run in the woods, or trees marked therein by the said surveyor, or by the Commissioners of the General Court, to divide the land of Mann Page from the land of Landon Carter, besides the lines aforesaid ; that, at the intersection of the last-mentioned line, from the white oak on the stony hill to the white oak marked R. C. on the bank of Bull Run, with a line designated by black a d, on Edward D. Hooe’s plat, (corresponding with the line M. C. in Grant’s plat, and' with the line A. P. in Kemper’s plat,) there was no corner or place in any manner answering the description of a stony hill near Bull Run ; and that there was no marked line tree on the said last-mentioned line.
    Evidence was further exhibited to prove that Mann Page, (under whom the defendant claims and holds,) in the year 1764, employed on his lot an overseer, who always from thenceforth claimed up to the lines, from the *L. C. tree aforesaid to the stony hill, and from thence up to the white oak marked R. C. on the bank of Bull Run, and was watchful to prevent trespassers up to the said lines ; that the claim and watch-fulnesss aforesaid continued for more than twenty years, without claim or interruption from the said Carters, or others ; but the land so claimed was during all that time in woods, uncleared and unsettled, and that the division lines run as aforesaid in the woods, have been uniformly the reputed dividing lines between Mann Page and Landon Carter, and between the said Page andi George Carter, and the said Page and Lewis Burwell, until the lessor of the plaintiff set up his claim in 1794; that the land contained within the boundary lines of Landon Carter’s lot, as represented on Grant’s plat, was larger by 1075 acres, and of greater value, one acre with another, than the land contained in Mann Page’s lot on the same plat; that the stony hill aforesaid is more than 100 poles distant from the line represented on Hooe’s plat by black a d ; that the lessor of the plaintiff acknowledged, that he believed that the L. C. tree aforesaid was the corner tree of the dividing lines aforesaid between Mann Page and Landon Carter ; that Landon Carter (the lessor of the plaintiff) and John Carter, devisees of Landon Carter, deceased, in their division of his lot between them, cornered their dividing line at a tree, in the line from the tree marked L. C. to the stony hill, without running into the land in controversy ; that Robert Carter and Wormeley Carter, in the year 1797, took a lease from the defendant of part of the land in controversy ; and that one of the lines of the said lease was bounded by the last mentioned line; that Landon Carter, the lessor of the plaintiff, was then alive, and until 1801; and that Wormeley Carter never had right to the said land in the lifetime of the said Landon Carter.
    The question between the parties was, whether the marked lines described as aforesaid should be established, or the line M. C. laid down in Grant’s plat; the land in Controversy being comprehended within part of that line, of the patent line, and the two marked dividing lines.
    The Court instructed the Jury, that, “if they were satisfied from the evidence, that the plaintiff’s beginning, in the survey in this cause made by Kemper, at A. was at the same corner of the patent described by John Grant at the point marked M. in the said Grant’s survey, and that the termination of that line at P. so run by the plaintiff in the survey made in this cause, was at. the corner described in the said Grant’s survey, as represented by the letter C. the line so run by the plaintiff in the survey in this cause should be by them considered as the true dividing line between the parties; the Court considering the line expressed in the decree of the General Court to constitute the legal division between Landon Carter, ancestor of the lessor of the plaintiff, and Mann Page, under whom the defendant claims.” To which instruction the defendant by his counsel excepted, and (a verdict being found, and judgment rendered for the plaintiff) appealed to this Court.
    
      Botts and Williams, for the appellant,
    •observed, that so much of the instruction to the Jury as was hypothetical, was unexceptionable, since it affirmed nothing-; but the •operative part of the instruction, which ought not to have been given, was, that the line so run by the plaintiff in the survey in this cause, should be considered as the true dividing line. The concluding part implies a misconception of the question presented by the record, since it only imports an opinion that the line expressed in the decree of the General Court was established, (a point not disputed,) whereas the question was, which of the conflicting lines “expressed,” or, rather, comprehended in the decree, should be established; and this question ought to have been decided in favour of the marked and reputed lines, according to Shaw v. Clements, and Baker v. Seekright, Bessee of Glass-cock, 
    
    *Wickham, contra.
    Whatever might have been the effect of this argument before the Jury, this Court have nothing to do with it. The instruction left the cause at large for the production of every argument which either party might think proper to urge to the Jury. The only point was, where did Grant’s dividing line begin. The Court did not say where it began ; but, wherever it did begin, it was admitted on all hands to be the true line. The Jury were to decide, and were left perfectly at liberty to take one line or the other. It would not have been proper for the Court to instruct the Jury, that the marked line should have been preferred ; because this would have been giving an opinion-on a matter of fact. It was a circumstance to be weighed by them, and they did weigh it; but it was counteracted by another circumstance, that Grant says he began at a corner in the patent line, and ended at a corner, whereas on the marked line there is no such corner.
    In reply, it was said, it does not appear at whose instance this instruction was given; ■but this Court must inquire whether it was legal or not. The question whether the marked lines were to be preferred to a line which never had been marked, was a question of law, and the Court should have instructed the Jury to regard the marked lines in the first place.
    But the Court did limit and mislead the Jury by this instruction ; because it confined them in the conclusion to be drawn from the identity of the line A. P. run by Kemper, with the line M. C. laid down in Grant’s plat, but never run by him. What right had the Court to say that, from such identity, it followed that Kemper’s was the true dividing line ? The conclusion was erroneous ; because the marked line might, nevertheless, have been the true line intended by Grant, though by mistake he laid it down incorrectly in his plat, as appears from his own explanation annexed to it; according to which, the point of intersection between the lines M. C. and I. P. is said to have been*at a white oak near Bull Run on a stony hill, when, in fact, the line M. C. as laid down in his plat, (corresponding with the line A. P. run by Kemper,) did not come within one hundred poles of that place.
    
      
      Deeds — Natural or Harked Boundaries — Course and Distance. — Natural or reputed boundaries, or lines of marked trees, ought to be established, in preference to mere course and distance, or to mistaken descriptions in surveys or conveyances. For this proposition the principal case is cited in foot-note to Shaw v. Clements, J Call 429; foot-note to Herbert v. Wise, 3 Call 239; Coles v. Wooding, 2 Pat. & H. 196; foot-note to Smith v. Davis. 4 Gratt. 50; Pasley v. English, 5 Gratt. 151; foot-note to Marlow v. Bell, 13 Gratt. 527; Clarkston v. Virginia Iron & Coal Co., 93 Va. 260, 24 S. E. Rep. 937; Adams v. Alkire, 20 W. Va. 486; Gwynn v. Schwartz, 32 W. Va. 496, 9 S. E. Rep. 883.
      Same — Same—Same — Parol Evidence. — Parol evidence is admissible to show the proper location of all descriptive calls, and determine if the land in dispute is embraced in the deed, and so give effect to the true intent of the parties. Hunter v. Hume, 88 Va. 30,13 S. E. Rep. 305, citing the principal case. For this proposition the principal case is cited in foot-note to Baker v. Seekright, 1 Hen. & M. 177; foot-note to Pasley v. English, 5 Gratt. 141; Elliott v. Horton, 28 Gratt. 773, and note.
      
      See monographic note on “Deeds” appended to Fiott V. Com., 12 Gratt. 564.
    
    
      
      lnstructions. — See principal case cited in foot-note to Dyerle v. Stair, 28 Gratt. 800; foot-note to McKinley v. Ensell, 2 Gratt. 333; Storrs v. Feick, 24 W. Va. 612, 613.
      See monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
    
    
      
      l 1 Call, 438.
    
    
      
       1 Hen. & Munf. 178.
    
   Friday, June 2. The Judges pronounced their opinions.

JUDGE) TUCKE)R.

There are certain principles which, in my opinion, ought to be always regarded by a Jury, in settling the boundaries mentioned in any grant, patent, or other deed, concerning lands in this country, They arise from a variety of considerations ; not only from the variations of the compass, but from old surveys being often very inaccurate; the plats returned being not unfrequently protractions upon paper, instead of the result of actual mensuration, and field notes, made upon the spot ; lines not unfrequently left out, and the courses of others mistaken by copyists, so that every new conveyance may be the parent of new mistakes; whereas natural boundaries are, perhaps universally, invariable ; and marked lines and trees, so long as they remain without destruction, or wilful alteration, in general furnish a safer guide than any other, except notorious land-marks established by the hands of nature. According to these principles, regard should always-be had to the following circumstances.

1. If a patent or deed refer to any notorious land-marks, or natural boundaries, which cannot be mistaken, and are not liable to change or decay, as the corners or angles of a plat, such notorious land-marks are to be regarded as termini, from whence straight lines are to be run from one to the other, without regard to the correspondence of either course or distance, which may in such cases be mistaken in the deed.

2. If lines and corners be proved to have been actually run, and agreed on as a boundary between parties holding adjacent lands, those lines and corners are, from thenceforth *to be regarded as the limits of the possession of each ; and from the period of running such lines, if they continue to be acquiesced in, the acts of limitation may be considered as beginning to run, so as to control the courses and distances mentioned in the deed, by establishing an adversary possession in either party, according to the lines so run.,

3. Where, in a grant or deed, courses and distances only are mentioned, beginning from a certain point, but not referring to any certain point for the termination, otherwise than by reference to the distance, according to the course prescribed; in such case, courses and distances, as expressed in the deed, are only to be regarded, unless an actual survey, duly authorized, be proved to have been subsequently made, according to the courses and distances prescribed by the de.ed.

4. Where courses and distances, with marked lines and corners, are referred to in a deed, in such case lines and corners corresponding most nearly with the courses and distances, lines and corners mentioned in the deed, are to be regarded as the true courses, &c.

5. If partition be made between two joint-tenants, or tenants in common of land by deed, or by virtue of a decree, if in the deed or decree it be expressed, that A. shall have all the lands which lie west of a line drawn from one notorious land-mark or natural boundary to another, and B. all that lie east thereof, although this line be never actually run, each is from thenceforth seised of his proper part, according to the true course to be run from one of those points to the other; but if a line be run and marked, by mutual consent or agreement, or by order of Court, and confirmed in the decree, and that decree be acquiesced in, the possession of each commences from that period, according to the line so marked, although that line be ever so erroneous ; and the act of limitations may operate upon that possession, so as to render such erroneous line, in process of time, the legal boundary between the parties.

*In the present case, the parties claim under a grant from the proprietors of the northern neck, to Bandon Carter and five others, for about 40,000 acres of land, in the year 1724, whereof partition was made by a decree of the General Court, upon a bill filed, and consent of parties, in the year 1739. The commissioners, for that purpose appointed, made a report, with a survey annexed, made by John Grant, in which, among other things, they say that they have allotted to Bandon Carter, under whom the plaintiff in the ejectment claims, the lot on the plat No. 1, separated (as by the plat appears) from the residue of the tract, by a straight line drawn from letter M. on the south side of the plat, to letter C. on the north side thereof, a distance above six miles, according to Kemper’s plat. They describe this line as running north 3 deg. east, and beginning at a white oak, marked R. C. near Young’s plantation, being a corner tree of the patent, and ending at another white oak,' on Piney Branch, another corner of the patent.

To Mann Page, ttnder whom the defendants claim, they allotted the lot No. 2, on the plat. Separated from the first lot, as described on the plat, by the line M. C. before mentioned; and from the third and fourth lots, by a line thus described: “The ■dividing line, I. P. N. 80 degrees east, begins at a white oak, marked R. C. on a high bank of the south branch of Bull Run, and ends at a white oak near Bull Run, in the line M. C. on a stony hill,” which is accordingly designated in that plat by the letter P. as in the straight line between M. and C.

The point P. thus designated in the plat returned to the General Court, constitutes a corner between lot 1, and lot 2, and between lot 2, and lot 3. The report was confirmed, and a decree accordingly; the parties, therefore, became seised in severalty of their respective shares, according to the terms of that decree.

*There are two plats of surveys made in this cause; iu one of which, made by Charles Kemper, there is a straight line drawn from a point A. on the south side of the plat, to a point P. on the north side thereof, a distance of 1,944 poles, (or more than six miles,) without meeting a single marked tree in all that distance, except one two miles or more from the lands in controversy, where, by the surveyor’s report, he intersected a plain marked line, nearly at right angles (it would appear from the plat) with the line he was then running.

In the other plat, made by Henry D. Hooe, a similar line appears to have been run from the same points, the distance 1,925 poles, and not a line tree discovered in all that course. By direction of the defendant’s attorney, the surveyor then began at a point marked little red a, 88 poles distant from the beginning of the first mentioned line, and nearly at right angles with it; and, having run the course designated on the plat by the red dotted line, red a, red b, at right angles therewith, and at the distance of eight poles eastward of that point, a stump at red c was shewn him, by two witnesses, on a stony hill, near the south branch of Bull Run, which tree they said they knew when standing, and that it was marked with R. C. In running this line, it appears that, a little on the right hand thereof, designated by the red dotted line, red a, red c, they passed a large number of ancient marked trees. Prom the corner red C. to red' P. there is a line of marked trees, corresponding pretty nearly with the dividing line, I. P. reversed in the plat, and report made to the General Court, in the year 1739.

The Court instructed the Jury, that if they were satisfied from the evidence, that the plaintiff’s beginning in the survey made by Kemper at A. was at the same corner of the patent described by John Grant, (whose survey was made the foundation of the decree of the General Court,) at the point marked M. in that survey, and that the termination of that line at P. to run by the plat in Kemper’s survey, *was at the corner described in Grant’s survey, by the letter C. the lice so run by the plat in the survey in this cause, should be considered as the true dividing- line between the parties.

If there had been no evidence whatsoever in the cause, by which it had appeared that any line had ever been actually marked from one side of the patented lands to the other, in the direction, or nearly so, with the course laid down in Grant’s survey, which was returned to the General Court or if no such stony hill near Bull Run could be found, as that mentioned by the commissioners who made the division between the parties, to have been in the line M. C. in the plat returned by them to the General Court, this direction might have been correct. But the termination of the line I. P. (which constituted a corner, not only between the parties iu this cause, but between the party under whom the defendant claims, and another joint-tenant, or tenant in common, under the original grant,) being expressly declared to be in the line M. C. and, moreover, to end at a white oak, near Bull Run, andón a stony-hill ; those permanent, natural land-marks, ought not to have been overlooked or disregarded by the Court in its instruction neither ought regular lines of marked trees, leading to such a point, and there terminating from different directions, to have been overlooked or disregarded, especially if they should appear to have run in a manner corresponding in any reasonable degree (of which the Jury were to judge) with the lines expressed in Grant’s survey, and made the basis of the decree of the General Court.

My opinion, therefore, is, that the judgment be reversed, and a new trial be had, with the following instruction: “That if, upon such new trial, any instruction to the Jury be prayed by either party, the Court ought to instruct the Jury that, if the Jury shall be satisfied from the evidence which shall be before them, that the point little red c in the plat made in this cause by Henry D. Hooe, ^surveyor of Prince William County, is the same with the point P. at a white oak near Bull Run, in the line M. C. on a stony hill, (as described in the plat and report made by John Grant, and the commissioners appointed to make a division of the lands comprised in a patent granted to Landon Carter and five others, and returned to the General Court, in the year 1739, by whom the same was confirmed and made the basis of the decree for a division,) they ought tb consider that point as a corner between the parties, or those under whom they claim, from which corner other lines, corresponding with the courses mentioned in that plat and report, ought (if necessary) to be drawn, by reversing the courses of the line M. P. and I. P. in Grant’s survey respectively, unless the Jury shall from the evidence be further satisfied, that an ancient line, corresponding with the course M. C. in Grant’s survey, has been actually run and marked, from the point little red a (or any other point on that side of the plat, as to the Jury may appear) to the point little red c, in the said Hooe’s plat described, either by the said commissioners appointed by the General Court as aforesaid, or by the parties respectively under whom the present parties claim, or their agents authorized for that purpose; in which case (if no contravening evidence satisfactory to. the Jury be offered) they ought to establish the line so proved to have been run and marked, as the true dividing line between the parties.”

JUDGE) ROANE).

The question of boundary in this case, was emphatically proper for the consideration of the Jury ; in deciding which they ought to have due regard to all the circumstances shewn in evidence in the cause, and, particularly, to marked lines and reputed boundaries. The cases of Shaw v. Clements, Herbert and wife v. Wise and others, and Baker v. Seekright, Lessee of Glasscock, in this Court, shew the sense of the Court in favour of marked and reputed boundaries, when in opposition *to mistaken descriptions in deeds or surveys, or to mere course and distance. It is said in those cases that, in a conflict of the kind, the Juries have very wisely and generally, in this country, disregarded the latter, and adhered to the former criteria, as being more stable and ■ permanent, and less liable to mistakes and misconception. Referring particularly to those cases for the doctrine I mean to adopt on the present occasion, it will be found that the decision in Baker v. Seekright, Lessee of Glasscock, is perhaps a complete authority in opposition to the instruction of the District Court. In that case, parol evidence was admitted to establish a marked line, which did not correspond with that mentioned in the deed either as to course or distance; It was so admitted, on the ground that the description in the deed may have been mistaken : whereas the marked and reputed line, being more stable and permanent, ought to prevail, or, at least,, be submitted without prejudice to the consideration of the Jury. So, in the case before us, it is very possible that the surveyor may have erred in his description of the two points beginning and ending the line in controversy ; he may have mistaken this in the figure itself, and corrected it (as he seems to have done) in the notes or explanation attached to and made part of his report of the survey. So, also, this possible mistake may perhaps be shewn to have been corrected by him, by actually running and marking the line claimed by the appellant; at least, however, this is an inquiry proper for the consideration of the Jury.

But the instruction of the District Court does not admit the possibility of a mistake in this respect in the survey : it is imperious on the Jury, in the event of the two points-in Kemper’s survey being proved to correspond with two in Grant’s survey. That instruction, therefore, omits to give to marked and reputed lines, their due weight with the Jury, according to the uniform decisions of this Court on the subject; it counts as nothing the various strong circumstances shewn in evidence by the appellant in favour of *his pretensions, but sets up as infallible, and as outweighing every thing else, a criterion not entitled under the decisions of this Court, or the usage of Juries in this country, to such preeminence. In fine, bottoming the instruction upon the mere proof of correspondence as aforesaid, it deprives the Jury of the right to go into the whole evidence, and to give their verdict upon a general consideration thereof.

Such being the character of this instruction, which may have misled the Jury, the verdict ought not to stand. On the new trial to be awarded, if any instruction at all is necessary to be given to the Jury, it should authorize them to take into consideration all the circumstances given in evidence in the cause, and especially the reputed and marked lines proved and relied upon by the appellant.

JUDGE) FLEMING.

There being no difference of opinion among the Judges as to the merits of the cause, the following is to be entered as the judgment of the Court: “This Court is of opinion, that the instruction given to the Jury by the District Court was erroneous ; therefore it is considered that the said judgment be reversed, &c. and it is ordered, that the Jury’s verdict be set aside, and that a new trial be had in the cause ; and that, if upon such trial, any instruction to the Jury be prayed by either party, the instruction be, that if the Jury shall be satisfied, from the evidence which shall be before them, that the point, little red c, in the plat made in this cause by Henry D. Hooe, surveyor of Prince William County, is the same with the point P. at a white oak near Bull Run, in the line M. C. on a stony hill, as described in the plat and report, made by John Grant and the commissioners appointed to make a division of the lands comprised in a patent granted to Landon Carter and five others, and returned to the General Court in the year 1739, by whom the same was confirmed and made the basis of the decree for the division, they ought to consider that point as a corner between the parties, or those under whom *they claim, from which corner, other lines corresponding with the courses mentioned in that plat and report, ought (if necessary) to be drawn by reversing the courses M. P. and I. P. in Grant’s survey respectively, unless the Jury shall, from the evidence, be further satisfied, that an ancient line, corresponding with the line M. C. in Grant’s survey, has been actually run and marked from the point little red a, (or any other point on that side of the plat, as to the Jury may appear,) to the point little red c, in the said Hooe’s plat described, either by the said Commissioners appointed by the General Court as aforesaid, or by the parties respectively under whom the present parties claim, or their agents authorized for that purpose, in which case, if no contravening evidence satisfactory to the Jury be offered, they ought to establish the line so proved to have been run and marked as the true dividing line between the parties.” Which is ordered to be certified, &c. 
      
       See 1 Call, 439, Shaw v. Clements; Herbert v. Wise, 3 Call, 239; 1 Hen. & Munf. 177. Baker v. Glasscock.
     
      
      a) 1 Call, 439.
     
      
      b) 3 Call, 339.
     
      
      c) 1 Hen. & Munf. 177.
     