
    
      David Amick v. Mary Holman and W. W. Holman.
    
    Where the jury have discarded fixed and settled land marks, for a purely conjectural location, a new trial will be granted.
    Quantity, generally, cannot control a location. It may be more or less, still it cannot tell you where the surveyor went, or where the parties intended to direct him to go.
    A possession for twenty years of a part of the land in dispute, in reference to a. line, conflicting with another tract of which another party may be also in actual possession, but outside of the disputed territory, may be enough to presume the execution of a deed, conveying the land in dispute, to tire party in possession. Slice v. Derrick, 2 Rich. 629,
    
      Before ON ball, J. at Lexington, Bpring Term, 1848.
    This was an action of trespass to try titles. Both parties claimed and derived titles from Saul Simons. Two tracts of land of 150 acres each, were granted in ’67 and ’68, to Archibald Dunbar. They lie north of Saluda, and resting on it, and running out adjoining each other from it. The defendant’s deed clearly covered the wholé of the grant of ’68. The plaintiff’s deed from Simons was the oldest, and the question was on its location. It was executed to James Calk, 5th February', 1806. There was no dispute until the line reached the stone corner; thence, the deed said, it was to run partly north east to a pine corner on the back line. Running the line, and pursuing nearly the dividing line between the two grants, the course would be north east, and a pine corner on the back line of the older grant would be attained. So turning to the right from the stone corner, and running north east to the north east corner of the junior grant, a pine corner will also be attained. The deed describes the land as fifty acres, part of. a tract of land granted to Archibald Dunbar. The location contended for by the plaintiff, would make the deed cover more than 100 acres: that contended for by the defendants, would reduce it to about 70 acres.
    The parol proof shewed, that in May, ’23, James Calk cleared the settlement where the plaintiff’s house and field now are: that he and those claiming under him, have been in possession of the same ever since. This house and field is in the angle at the stone corner. The fence was built on or near a part of the line, from the stone corner to the pine, the north east corner of the second Dunbar grant. So too, there was no doubt that there was a line from the stone to that corner, which had been in existence 25 or 30 years. William Amick and Jacob Amick both proved the pine corner just spoken of, to have been shewn by Calk as his corner, 25 or 30 years ago. On the other hand, Mr. Hezekiah Drehr said, although he knew of the line and corner spoken of by the Amicks, yet he always understood the true line to be from the stone to the small pine on the back line of the first grant, and that pine to be the corner. If the plaintiff’s deed were confined to the first grant, there was no doubt the location spoken of by Drehr, was the true location.
    The defendants and those under whom they claim, and particularly the husband and father, William Holman, deceased, were in possession under the second deed from Saul Si-mons. It seemed that there was always some dispute about the land now in dispute. Still Holman’s clearing and fences, as laid down in the re-survey plats of the surveyors, Garvin and Fort, reached to, and not beyond, the line claimed by the plaintiff: recently the defendants, at the north east angle, have trespassed, by making a small clearing over the line. T.
    The case was submitted to the jury, with very proper and careful instructions on the question of the location. No exception is taken to the charge in that respect, and it need not therefore be further stated.
    
      2 McMull 47 ‘
    The-jury were told by the Circuit Judge, that inasmuch as both Calk and those claiming under him, had beeninpossession under the first deed from Simons, claiming to the line for which the plaintiff now contends : and Holman had also been in actuel possession under the second deed, clearly covering the land in dispute, although his possession was outside of the disputed territory, still, as the constructive possessions were equal, the plaintiff could only hold by his statutory title the actual pedis p ossessío of Calk for ten years.
    
    The jury found for the defendants, except the house and field designated in the plats, and now in the plaintiff’s possession.
    The plaintiff appealed and moved the Court of Appeals for a new trial, on the following grounds, viz :
    1. Because the finding of the jury is wholly uncorroborated by the evidence, the plaintiff having established a complete title to the land in dispute, by deed from Saul Simons (from whom the defendants also claim) with twenty-five years possession.
    2. Because the verdict is contrary to the uncontradicted testimony of all the witnesses on both sides, as to the line from the stone to the pine corner, on the old line, which had been recognized by the owners of the two adjoining tracts, and by their mutual possessions, for more than twenty years.
    3. Because his Honor erred in charging the jury that the possession of those under whom the plaintiff claims on the land in dispute, would not entitle the plaintiff to claim beyond the field which had been in actual possession for ten years ; although the defendants, and those under whom they claim, had never had any possession on the disputed land.
    
    4. Because the verdict of the jury in other particulars is contrary to law and evidence.
    
      Fair, for the motion.
    Boozer, contra.
   O’Neall, J-.

delivered the opinion of the Court.

-*-11 t^is case, as in Felder v. Bonnett, it may be said that ‘ “ questions of location approximate so nearly to purely legal questions, that a new trial is more readily granted for error in them, than in any other class of cases depending upon facts.”

In this case, we think we are bound, as we were in Felder v. Bonnett, to grant a new trial. The jury have discarded fixed and settled land marks, for a purely conjectural location. In the location of Saul Simons’ deed to Calk, there was no dispute till it reached the stone corner, formerly a post-oak. About that, too, there was no dispute. From it to the stake by a stump (formerly a pine corner) was a plain well marked line, corresponding with the course laid down in the deed,— certainly claimed, by the plaintiff, and those under whom he claims, for more than 25 years. The defendants and their husband and father lived in sight of that line, suffered the settlement and clearing in the angle A. to be made, and occupied from ’23, up to that very line. They on their part clearing, cultivating, and holding, until very recently, in reference to the same line. Under such circumstances, the line may be considered as almost conclusively established. As is said in Slice v. Derrick, a possession for 20 years of part of the land in dispute, in reference to a line conflicting with another tract of which another party may be also in actual possession, but outside of the disputed territory, may be enough to presume the execution of a deed conveying the land in dispute to the party in possession.

2 Rich. 629.

1 Hill, 135 & 137.

It is true, in this case, that the description in the deed, “ part of a tract of land granted to Archibald Dunbar,” would, were it not for the actual lines found, and marked, perhaps confine the plaintiff’s claim to the first grant. But run the line, as the defendants contend, and still, it will, between the water-oak and stone, cut off part of the second grant.

There is nothing in the call for a pine corner, on the “back original line.” The corner to which the line from the stone to the stake near a stump runs was originally a pine; it stood on the back original line of the 2d grant. So too, on any correct principles of location, must be regarded the little pine corner. For locate the first grant, as the surveyors have, 1, 2, 3, 4 — and then the second grant upon it, as a boundary, and the result is, the little pine is on its (the 2d grant’s) back line.

Quantity generally cannot control a location. It may be more of less, still it cannot tell you where the surveyor went, or where the parties intended to direct him to go.

In this case, it is the safest to be guided by the unequivocal evidence, which we have in a line 25 years old from the stone to the stake, near a stump (originally the pine corner,) and possession on both sides conforming to it. It is true, there is a line from the stone to the little pine, and that Hezekiah Drehr said that he always regarded that as the true corner, but there was no evidence that Calk, or any one claiming under him, ever so regarded it. 'Indeed if the line were run from the stone to the little pine, there was very little necessity for a comer at the stone; the line is almost straight: indeed there is as little variation as there is between the pine station and the post-oak or stone corner, on the line leading from the water-oak on the river by the red-oak, on the big branch, to the stone corner, and thence to the little pine.

As to the 3d ground, it is only necessary to say, that the law, as it was ruled by the presiding Judge, is as well settled as any can be. The case of Huger v. Cox need only be referred to, to shew that, at least since 1833, there could be no room to digprite about it.

The verdict of the jury, however, is wrong, in finding for t¡le defendants. The plaintiff is plainly entitled to recover the land.

The motion for a new trial is granted.

Richardson, J. EvaNs, J. and Frost, J. concurred.  