
    Overton’s Heirs vs. N. Cannon.
    1. In order to bind a man by a processional survey, an authority from such man to tho surveyor to make such survey must be proved, and in the absence of proof the presumption of lawis, that it is unauthorised.
    2. Where the deputy surveyor and Overton, whose land was about to be surveyed under the act of 1806, disagreed and applied to the principal surveyor for his instructions, and the principal suryeyor directed the survey to be completed according to the mode insisted on by the deputy, which mode was Illegal, and thereupon Overton abandoned the further prosecution of the survey: Held, 1. That a countermand of survey was not necessary; and, 2d. If it were, a refusal to have any thing more to do with the purvey, would in the absence of other proof, be sufficient to establish such countermand.
    3. If an individual recognizes and adopts a processional survey as establishing the boundaries of land, this recognition and Adoption shall bind him; and this is so, though he may not haye accompanied the surveyor and assented to his processional survey at the time.
    4. A man shall not be estopped from claiming his just and legal rights by a hasty, ill-advised and momentary recognition or adoption of a line which has been illegally run; and, therefore, the circuit judge erred, when he charged the jury, «that if the defendant recognized or adopted the processional line, it would bind him, although he had recognized it only one day.”
    This action of ejectment was commenced in the circuit court of Bedford county, on the 19th day of-August, 1836, by N. Cannon? against the heirs of John Overton, for the recovery of the possession of certain lands, lying on' both sides of Duck river, in said county. The controversy arose under a grant for 5000 acres, by the State of North Carolina, to J. G. and T. Blount, an<J the leading facts of it are-found reported in Meigs, 216. ..This supersedes the necessity of more than a very brief statement of the facts upon which the question in this case arose.
    After various continuances, it was submitted to a jury of Bed-ford county, at the August term, 1840, Judge S. Anderson, presiding.
    •Cannon read to the jury, a grant from the State of Tennessee for six hundred and forty acres, dated 14th June, 1828, by virtue of an entry made on the 15th day of December, 1826, under the provisions of the act of 1823, authorising entries to be made of vacant and unappropriated land, by the payment of 12J. cents per •acre, into the treasury of the State, and office fees. This grant covered land in the possession of Overton’s heirs. , The defendants relied on a grant for 5000 acres to John G. and Thos. Blount, made by the State of North Carolina, in 1793. The Blounts sold and conveyed to Allison; Allison mortgaged to Norton; Norton filed his bill for foreclosure in the federal district court at Nashville.— The land was sold by a decree, A. Jackson became purchaser, and by power of attorney, authorised the conveyance of the land Jo Overton and Whiteside, &c. This was done in July, 1802.— In May, 1807, Whiteside and Overton, by deed, divided the land between themselves, assigning to each two portions thereof. The grant to the Blounts calls to lie on both sides of the two main forks of Duck river, beginning opposite to the mouth of Wartrace creek at a black-walnut, a plumb tree and hickory, and running west, &c., thence south 894 poles to a stake, .crossing the river, &c.
    If in running the line south, the survey be stopped at the distance of 894 poles, the land in dispute is not within the limits of the grant, but if the line be extended across the river*, it is within the limits of the grant.
    It appears that, in 1808, John Overton went upon the land with Malcolm Gilchrist, a deputy surveyor, for the purpose of making a processional survey of the tract; that they commenced at the beginning and run the first line to the white oak called for; then, the second, the course and distance, to wit, 894 poles, at which point the surveyor stopped and refused to proceed further: Overton contending that he should run on to the river in obedience to the express call of the grant, and not being able to agree upon the point they stopped the survey and went to the principal surveyor, William P.^Anderson, for instructions: that Anderson directed Gilchrist to stop at the distance of 894 poles called for, and Overton expressed dissatisfaction with this result, and refused to have any thing further to do with the' processional survey; that Gilchrist, without his presence or assent, proceeded to procession the land according to course and distance, disregarding the call for the river, and returned the plat and certificate of survey, which were received by the principal surveyor and registered and laid down on the general plan.
    If the lines were run as desired by the surveyor, the land claimed by Gannon was vacant and subject to entry at the time he entered it. If run as Overton insisted, it included the land claimed by Gannon and gave Overton and Whiteside, above their 5000 acres, a surplus of about 1800 or 1900 acres.
    Overton and Whiteside at a subsequent period had. the grant to the Blounts run out according to their construction of its calls, and in 1813 took actual possession of the premises according to such calls, and continued to hold accordingly. The supreme court in the case of Singleton vs. Whiteside, (see Meigs, 209,) at the December term, 1838, decided, that the surveyor in his processional ■survey should have crossed the river, the call to cross the river controlling the less material call for so many poles, and that the surveyor had authority to procession the land of Overton and White-side by their consent, and if they, or either of them dissented from the course adopted by the surveyor, it would not bind them or either of them.
    In addition to the evidence which was submitted to the jury in the case of Whiteside vs. Singleton, and which appears in that case as reported, there was introduced to the jury by the plaintiff some other testimony, documentary and verbal, (not necessary here to be set forth,) for the purpose of showing that Overton acquiesced in the processional survey made by Gilchrist in February, 1808, and that he adopted it, and claimed under and by virtue of it for a considerable length of time, and was therefore bound by it.
    The judge presiding, charged the jury substantially as follows: “The grant, No. 235, to John G. and Thos.Blount, which had been read to them, called to run south from the second corner 894 poles to a stake, crossing Duck river. If that grant never had been surveyed, and we were now fixing its boundaries, the second line would have to run to the south side of Duck river, although three hundred poles or upwards further than called for, and the third line would have to be run east from a point immediately on the south hank of Duck river the distance called for, and thence to the beginning. But it is insisted that John Overton, who owned or claimed to own the one-half of the land granted to the Blounts, procured Malcolm Gilchrist, deputy surveyor of the second district, to procession said land agreeably to the 21st section of the act of 1806, and the surveyor terminated the second line at the end of 894 poles and north of Duck river, and run thence east, thence north to the beginning; that the lines then run were marked, and such survey was binding upon Overton, and he was estopped from claiming beyond the lines there marked. Upon this point the court told the jury, whatever lines were made by Gilchrist, with the consent of Overton, were binding upon him and the State; but if Over-ton and Gilchrist disputed as to the manner of surveying the land, when they were 894 or 920 poles south from the second corner, and went to the principal surveyor’s office to get his instructions, if Overton agreed to leave the determination of the question to the principal surveyor, and to be bound by his decision, and if the principal surveyor decided the question against Overton, and the survey were afterwards made in pursuance of that decision, it would be binding upon Overton, although against his wishes; unless he had countermanded or revoked the authority to Gilchrist before he run and marked the south boundary line. If he had thus agreed to refer the decision to the principal surveyor, he had power to revoke the authority any time before the survey; but if the proof only showed that Overton was dissatisfied and went off expressing dissatisfaction alone, and refusing to return with the surveyor to complete the survey, that would not be a revocation of the authority to Gilchrist. But if he never agreed to abide by the decision of the principal surveyor, the decision of the surveyor, and the survey made in pursuance of that decision, would not bind Overton, if he objected and refused to return to complete the survey. But if after the survey was thus made, Overton, with a knowledge that the south boundary line had been run and marked by Malcolm Gilchrist in his processioning survey, recognised or adopted that south boundary line, it would bind him, although he had only recognised it one day; but for the recognition to have that effect, Overton must not have been underany mistake as to the line he was thus recognizing, to wit, if he ever recognized this processioning south boundary line, if he supposed he-was recognizing the extended southboundary line which run east from a point on the south bank of the river, such recognition would not. bind him.”
    The jury rendered a verdict in favor of the plaintiff. The defendants moved the court for a new trial, which was overruled, and defendants appealed in error.
    
      Ready, for Overton’s heirs.
    In this case, exceptions were taken to the chai’ge of the judge below to the jury. In speaking of a supposed agreement between Overton and the surveyor, Gilchrist, to refer a dispute betweem them about the manner in which the processioning survey was to be made, the judge told the jury, “if he had agreed to refer it (the dispute) to the decision of the principal surveyor, he had power to revoke the authority any time before the survey, (meaning the authority of Gilchrist,) but if the proof only showed that Overton was dissatisfied and went off expressing dissatisfaction alone, and refusing to return with the surveyor to complete the survey, that would not be a revocation of the authority to Gilchrist.” In this there was error. The very reverse of the judge’s position would be correct, even if it were true Overton had agreed to refer the dispute to the principal surveyor, of which there is no proof. If he had made such agreement, the expression of his dissatisfaction at the decision, his going off, &c., was a revocation of the authority. Moreover, such an agreement was not binding on him, even if it had been in writing.
    Again: The judge said to the jury, “if, after the survey was thus made, Overton, with a knowledge that the south boundary line had been .run and marked by Malcolm Gilchrist in his processioning survey, recognized or adopted that south boundary line, it would bind him, although he had only recognized it one day; but for the recognition 'to have that effect, Overton must not have been under any mistake as to the line he 'was thus recognizing, that is, if he ever recognized this processioning south boundary line, if he supposed he was recognizing the extended south boundary line which run east from a point on the south bank of the river, such recognition would not bind him.” Now, the judge supposed a case which was not made out by the proof.
    
      [Mr. Ready here commented upon the evidence, to show that Overton had never recognized and adopted the processional survey.]
    But if the evidence of recognition, proved every thing contended for, the charge of the judge was incorrect. Overton would not be concluded, by a recognition of the south boundary of Gilchrist’s processioning survey. It would only be evidence of boundary, to be submitted to the jury as other evidence, to be weighed and considered of by them. The judge’s charge relieved them of that trouble, by deciding for them the effect of the testimony.
    The recognition of, and acquiescence in aboundary, cannot bind in a shorter period than would be required to create a bar under the statute of limitations when there has been an adverse possession. Adams vs. Rockwell, 16 Wend.-285: Kip vs. Norton, 12 Wend. 127; Jackson vs. Brown, 1 Cains’ Rep. 358.
    
      Meigs, for Cannon,
    cited, 9 Yer. 55: M. & Y. 69.
   TtjRley, J.

delivered the opinion of the court.

This case turned, in the court below, upon the question of whether the defendants were estopped, by a processional survey made by Malcolm Gilchrist, a deputy surveyor, from claiming land covered by their grant and not included in the processional survey. The defendants denied that they were, because, they said, the survey was the unauthorised act of the surveyor, made without the consent of the owners, and binding on no one. This, the plaintiff denied, but also contended, that, even, if this were so, the survey was afterwards recognised and adopted by the owners as the evidence of their boundaries, and that they are thereby as much estop-ped from claiming beyond them, as if the survey had been originally made by their authority. Much proof was heard on both the propositions, which need not be particularly set forth, in as much as the question rests here upon the correctness of the charge of the circuit judge, who tried the case.

There was proof that John Overton, one of the owners, went with Malcolm Gilchrist to procession the land under the act of 1806: that they ran and marked the first line: the second line called to run south 894 poles to a stake, crossing Duck river. When they went to the distance called for, Gilchrist stopped and refused to run further, Overton insisting on the lines being extended across the river. When they could not agree, they both determined to go to the surveyor for his opinion; he decided that Gilchrist was right, and Overton wrong, upon which Overton left, and Gilchrist, without further authority from Overton, returned of his own accord and completed the survey, pursuant to his opinion of the manner in which it should be made, by which a large amount of land covered by the grant is excluded and lost to the owners, if it be permitted to stand.

Upon this point, the court charged the jury: “If Overton agreed to leave the determination of the question to the principal surveyor, and to be bound by his decision; and if the principal surveyor decided the question against Overton, and the survey was afterwards made in pursuance of that decision, it would be binding upon Over-ton, although against his wishes, unless he had countermanded or revoked the authority to Gilchrist, before he made the survey.”— This charge was too strong, and was well calculated to mislead the jury.

There is an attempt made here, to draw a distinction between the case, where the deputy surveyor and party interested go to the principal surveyor to get his opinion on the matter in dispute between them, .and the case, where they agree to leave it to his determination. If they take the opinion of the surveyor, the person injured need not countermand the survey, but if they leave it to his determination, he must, treating it somewhat as an arbitration. We cannot recognise this distinction, but hold the law to be, that where thé deputy refuses to procession according to law, and is sustained by his principal, and makes a survey, by which a man’s land is taken from him, an authority for him to make it must be proven; that in the absence of proof, the legal presumption is, that it was unauthorised. And that when the proof shows that the owner and deputy began to procession and disagreed as to the mode, and went to the principal surveyor for instruction, who decided for the mode adopted by his deputy, which mode was illegal, and highly injurious to the owner of the land, that a countermand of survey is not necessary, and if it were, that a refusal on his part to have any thing more to do with it, would, in the absence of other proof, be sufficient to establishrthe countermand.

Upon the question of a recognition and adoption of the processional survey by Overton, after it was made, there w.as much proof, proper to be left to the jury. The judge charged, “that, if after the survey was thus made, Overton, with a knowledge that the south boundary line had been run and marked by M. Gilchrist in his processional survey, recognised or adopted it, it would bind him, although he had only recognised it one day.”

This portion of the charge is, also, too strong; if the word “and,” had been substituted for the word “or,” and the words “processional survey” for the words “south boundary line,” so as to make the charge read, “if Overton, with a knowledge that Malcolm Gilchrist had ma,de the processional survey, recognised and adopted it, as the true boundaries of his tract, he would be estopped by it,” the charge would have been right; but to hold, that a man shall be estopped from claiming his just and legal rights by a hasty, ill-advised and momentary recognition of a line, which had been illegally run, we think would be exceedingly dangerous, and well calculated to unsettle rights to land, by exposing them to the fraudulent conduct of the land-monger, and the danger of having it supported by per-jury7 the necessary consequence of the reception of parol proof to establish the recognition.

The case will be reversed, and remanded for new trial.  