
    
      Mary Cain et al. v. Elijah Hodge.
    
    in trespass to üy title, where the jtuy had been governed, in fixing the location of the land, by an unsatisfactory natural boundary, and it appeared to the Court, that by course and distance from either of two certain points, preserving the plat distances, the plat could be closed satisfactorily, disregarding its course and shape, in a manner differing widely from the finding of the jury, a new trial was granted.
    
      Before Withers, J. Sumter, Spring Term, 1848,
    REPORT OF THE CIRCUIT JUDGE.
    This was an action of trespass to try title, and the complaint in the grounds of appeal has relation to the mesne conveyances offered by the plaintiffs as links in their chain of title; and also to the location of the land claimed as established by the jury.
    The plaintiffs claimed under a grant, dated on the 11th of November, 1770, to Thomas Maples, a conveyance by his children to Isaac Brunson, dated January 28th 1786 5 a sale by order of the Ordinary of Isaac Brunson’s real estate, through the 'sheriff of Sumter district, to Wm. Cain deceased, of whom the plaintiffs are heirs at law.
    I held the deed of lease and release from Josiah Marma-duke and Catharine Maples to Isaac Brunson, admissible upon the evidence.
    # jf # # ^ #
    The next objection was to that' link in the chain furnished by the proceedings of the Ordinary.
    The plaintiff had offered in evidence a grant for a tract of land, situated on Cane Savannah, to Isaac Brunson, which adjoined the land granted to Maples.
    The petition to the Ordinary for the sale of Isaac Brun-son’s real estate, described it as “a tract of land situated in said district, on Cane Savannah, containing 400 acres, more or less.” The summons issued, added to that description the following — “bounded North and East by lands of John M. Dargan, and South and West by lands of Brumly and Dracey, containing 400 acres, more or less, originally granted to Isaac Brunson, Thomas Maples and Wm. Bracy.” The order for sale described the lands as they were described in t¿e summons, or rather referred to the summons as containing the description. The sheriff’s deed contained the like description, though the specification of the several grants that covered the tract was omitted in that conveyance.
    I saw no such ambiguity or want of particularity in the description of the premises in the proceedings of the Ordinary as seems to be relied.upon, and is imputed by the appellant. It was very probable the petition was drawn in reference to some plat of resurvey of all the several parcels of
    
      
    
    land Isaac Brunson had acquired. But the summons surely was specific enough to be altogether intelligible to Brun-son’s heirs. It referred by name to the Maples grant. The description did include, in fact, the land in dispute — and even allowing that the heirs of Brunson might have required in v the petition a more special description of the real estate, or an abstract of title — does it lie in the mouth of a stranger to urge the objection now setup?
    Thus much for the objections to plaintiff's title.
    The ground upon which the contest was really waged, was the question'of location. A great deal depended upon the representation of Cane Savannah swampupon the plat attached to the grant to Maples, of date 11th November. 1770. Upon the face of that plat Cane Savannah Swamp seemed to have been carefully represented, (in its relation to the line of the Maples’ tract run in that direction,) by means of dots — along a part of the line marked on said sketch, A. B. C. D. According to the plaintiff’s plat, Cane Savannah Swamp came in contact, (or very nearly so,) with the line in two places— and several pines were represented by the surveyor as having been marked by him on the line referred to. Isaac Brun-son’s land, called for in the grant and the plat as an adjoining tract, was found (said plaintiff’s surveyor, S. H. Boykin,) and satisfactorily located ; so that the starting point at A was fixed. The corner, D, was an open one. But one original marked tree was found on the line between A and D, and that dated back to 1770, the period of the grant. That tree, Mr. Boykin thought, occupied the position B, as laid down on his plat. His reason for this was, that in no other position would the bearings of the swamp be preserved in relation to the line. The swamp he regarded as a natural mark and must control the location — and if so, he was necessarily carried to C, (which, however, was cleared land — an old field,) for at that point, reference being had to the swamp,, the original surveyor had marked a pine, where he stopped; from that point he would take distance and make a comer at D. This comer would be a little beyond the run of Cane Savannah — which was not laid down on plaintiff’s plat, but the original surveyor had never been at the corner, and therefore it was not to be expected that his plat should notice the objects there. John N. Barrillon and Wm, L. Brunson both said they would locate the plat produced by plaintiffs with their grant as Mr. Boykin had done — thinking the swamp— the designated points of it — would dictate his location. In this Mr. Cooper, a survepor, did not quite concur, for the reason, he said, that he thought there was inaccuracy in laying down the swamp in the old plat. Though, he said, he would give the preference to a natural mark over course and distance, “unless there was some evidence on the plat of a mistake as to the natural mark.” Small swamps, he added, were not laid down with the same accuracy as considerable streams — Cane Savannah is a bold stream. Cooper and Brunson* had run out the Maples’ grant according to a copy plat from the Surveyor General’s office, on which there was ’ no representation of the swamp — and in locating that copy plat, Mr. Cooper said he would do as Brunson had done, to wit: he would take distance merely, irrespective of the swamp, from B, and that would cany him to figure 2, which would exclude the trespass.
    The question simplified, was whether that point of Cane Savannah swamp near the letter C, was intended to be represented on the plat attached to the grant. Mr. Boykin thought so, and with him concurred Brunson and Barrillon.
    With a view of aiding the defendant in his mode of location, the following testimony was elicited from Wm. L. Brun-son, viz : “25 years ago, perhaps in 1819 or 1820,1 was engaged in surveying lands for the estate of Dargan, adjoining the Maples’ tract, which was then in possession of Isaac Brunson. He was with me and acquiesced in a corner regarded as his, (at figure 2 the witness meant.) There was then a stake at that place, and if the lines were closed from that point, there would be a surplus of distance. At that point there is an old field, and has been these 40 years. At that time, Isaac Brunson was perhaps 70 years old, though I had no reason to regard him as imbecile and would have traded with him. He lived on the Branson tract — I found some difficulty in running one of the Dargan lines, and sent for Isaac Branson, who came, and he did not dissent from the line. I ran from figure 2. I don’t recollect any thing he said on the subject. He was with me when I run out the line. I had not then the Maples’ papers. In old surveys, swamps are often laid down inaccurately. The original for Dargan’s called for Maples’ land or Brunson’s. Isaac Brun-son knew we were fixing the lines of the Dargan land. When I say he acquiesced, I speak from the fact that he was with us, but I don’t remember the words he used, nor can I point out the particular places where he was with us. He had had possession of the tract in dispute, I don’t know how long. He may have been living at Pitt’s, when I made the survey.”
    On the line of the Maples’ plat running from the Isaac Brunson tract to Nasty Branch, and near that stream, was found the position of an original black gum. The comer on that line was left an open one — the surveyor seems not to have crossed the branch. What the defendant suggests in one of his grounds of appeal is, that the comer on this line should be fixed by true distance from the black gum ; a line should be run thence North East according to course and distance, and then the lines closed from figures 2 and 3. (Tide sketch of plat hereto annexed.)
    Finally, the defendant contended that the plaintiff’s plat had been fraudulently altered since it issued under the seal of the State, in respect to the designation of Cane Savannah swamp; and it was subjected to minute examination under a magnifying glass. To that end, he was allowed to intro-' duce a copy of the Maples’ plat from the office of the Surveyor General, which that officer, on examination by commission, testified was an exact copy of the one in his custody in every particular ; and on that copy, thus introduced, there was no designation of Cane Savannah Swamp. I believe, however, the trees purporting to have been marked on the only two lines originally surveyed, were identical on both. The defendant’s counsel supposed that the original plat of survey was in the Surveyor General’s office — and hence, that the one accompanying the grant to Maples was a copy, according to the scheme of the Act of 1784. But that Act had no bearing upon this question, for Maples’s grant issued in 1770. So far as our investigations extended upon the trial, it appeared to me, that the original plat made by Maples’ surveyor, was not filed in the office of the Surveyor General; for by the Act of 1733, 3 Stat. 344, sec. 4, it would seem, that the plan then established in obtaining grants, as to the point in question, was to leave in that office the warrant, but it was required that the Surveyor General “should certify and deliver the plat or plats within 20 days after their being so received in his office,” under a penalty, provided his fees were paid.
    To my eye, there did not appear to be on the face of the plat any changes, additions or alterations as to Cane Savannah swamp. The word “pine” had been written on it at softie modern time — but that was hardly done with any improper design — for it was at a place where it could have no influence certainly on the case at bar, and so far as I could see, could have none in any case.
    I admonished the jury as to the familiar principle that the plaintiffs must establish a good title and a satisfactory location also ; that I did not consider the attack upon their title, in this case, sucessful in any particular; that the questions,, therefore, were — 1. According to what plat must the survey be made 1 2. If according to that adduced by plaintiffs, was Mr. Boy-kin’s plat of re-survey a correct location ?
    They were charged, that if the plat, produced by plaintiffs, was, in fact, attached to the Maples’ grant, when it issued, and had the marks of Cane Savannah swamp upon it, as they now appear, the survey must be made according to that plat; and the testimony of the Surveyor General, and the copy plat derived from him, could avail nothing; for the seal of the State sanctified the plat which it authenticated, whether original or copy; it being a part, and a very essential part, of the grant, which was not now assailable in this form, for any thing anterior to the date of its issue. But if the plat had been altered since the seal of the State was attached, the party producing it could have no benefit from such alterations ; and in such case, the copy plat from the Surveyor General’s office, should be the one to govern the location. The rules of location were recited to the jury, and the opinions of the surveyors, illustrated by an explanation of the plats, were again (after a very full argument at the Bar) reproduced to the jury; and they were advised that those opinions, touching the location, were in favor of the plaintiffs, if their plat was to be adopted ; but in favor of the defendant, if the copy plat from the Surveyor General’s office were to be adopted. It was remarked that a forgery ought not to be readily presumed.
    As to the acquiescence of Isaac Brunson in a corner, insisted upon now for defendant, I charged that I thought the aid to be derived by defendant, from all that Brunson had said upon that subject, was feeble; that an agreed line, between parties interested, might, in a doubtful question of location, be taken into account in fixing the true one; that where parties run a new line, at or before the execution of a deed conveying land or concerning it, and acquiesced long in such line, it might be regarded as evidence that it was the true one. But I considered all which Isaac Brunson had said or done was not binding upon him or the plaintiffs claiming under him, if the veritable line, run by the original surveyor, could be found and had been, and was at variance with what had been considered his admissions or acquiescence.
    I add none of the testimony, as to the title adduced for defendant, because it was wholly immaterial in the issue — nor upon the point of adverse possession ; for a minority among the plaintiffs, clearly protecting their rights, was fully established. I believe, indeed, neither of these matters are alluded to in the grounds of appeal.
    The verdict found for the plaintiffs, the land in dispute and $5 damages.
    The defendant moved for a hew trial, upon the following grounds:
    1. Because the plaintiffs did not make out a title to the locus in quo, inasmuch as the petition to the Ordinary for partition did not embrace this land, though the petition undertook to describe the premises whereof partition was sought.
    2. Because the grant' to Maples, under which plaintiffs claim, does not embrace the land in dispute.
    3. Because Cane Savannah swamp, the mark upon plaintiffs’s original plat, upon which his location depends, is not found upon the plat in the Surveyor General’s office; and other marks are found upon the plaintiffs’s original, which have been manifestly added since it was issued from the office ; wherefore defendant respectfully submits that no reliance can be safely placed upon any marks found upon such a plat, which are not found upon the plat in the office of the Sur-, veyor Géneral. '
    4. Because the swamp of Cane Savannah was, in the opinion of the Surveyor, delineated without any regard to rule, and furnished no reliable means of ascertaining the corner, even if the marks upon plaintiffs’s plat were all genuine ,• whereas the jury were instructed to regard, and did regard, Cane Savannah swamp as the controlling mark of the location.
    5. Because, in a doubtful location, the testimony of the surveyor, Wm. L. Brunson, that 25 years ago, when he was running the line between the Maples’s tract and the Dargan lands, he suspended his operations, sent for Isaac Brunson, the then claimant of the Maples’s tract, who came to him when he was upon the land, and went with him along the line which witness was then running out as the dividing line, and made no objection thereto, ought to have controlled the jury in the location of the land.
    6. Because, even if the corner is established in Cane Savannah swamp, the defendant is not a trespasser, inasmuch as the line thence ought not to pursue course, but should intersect the western line where distance gives out.
    
      W F. DeiSaussure, for the motion.
    
      F. J & M. Moses, contra.
   O’Neall, J.

delivered the opinion of the Court.

The only matter in this case which requires an opinion is as to the location of the grants, under which the plaintiffs claim and derive title.

I have marked the draft annexed to the Judge’s report, in the same way that I have the surveyor’s, so that the case may be understood from either. There are only two certain points, which will control the location. The first is the corner A. on the grant to Brunson, on the line A, B, 2 C, D, The second is the station found on the North side of Nasty Branch, marked E. on the line running N. W.

The location from these is I think perfectly plain. Begin at A, and run to the pine station, found at B. which will be either the first or second called for in the plat. I presume, judging from the distance, that it is the second. The distance measured from it will give the terminus of that line; for the swamp of Cane Swamp, represented, on the original, as being around- the corner at the end of the line, is two unsatisfactorily laid down to be regarded as a boundary. The run of the swamp is not at all laid down. There is nothing, which tells us whether the corner was on the margin of the swamp, or whether it Avas deeply embosomed in it. The copy from the Surveyor General’s office has no such representation, nor is there any mention made of it as a boundary jn grant< Under such circumstances, it cannot be regarded as a fixed natural boundary, to which we can go in running a line. It may be, and I presume it is, so from the manner in which the swamp is laid down along the line, that stop at 2, or at C., and still Cane Savannah Swamp would be contiguous to it, and might well be represented by dashes as close to, and possibly touching, the corner with its margin. But there is still another means of trying the location. Begin at E. the station found North of Nasty Branch, and give the plat distance across and beyond the branch, and that will give the corner D, 1. There is not a marked tree on that line; it was an open line, in the original survey. It must of necessity be closed by course and distance; so closing it, it will come to 3 B, 3. The line thence is also an open line ; close it by course and distance, and it will terminate at 2, on the line A. B. 2 C. D., and if that terminus should correspond with the plat distance from the station B., then that would be the true corner, and fix the location. But if the distance should carry that comer to C., or even to D.. the terminus of that line being thus extended and fixed, and the corner 3 B. 3, being fixed on the line D. 1, the result would be the plat would have to be closed from corner to corner, disregarding the course and shape of the plat. Either location which I have suggested differs so widely from that found by the Jury, that a new trial must be granted, which is accordingly ordered.

Richardson, J. and Evans, J. concurred.

Frost, J. concurred in the result,

Motion granted.  