
    
      Mercer, &c. vs. Bate, &c.
    
    Error to the Bullitt Circuit; Paul I. Booker, Judge.
    
      Boundary lines, Lost'comers. Surveyor’s report. Ideal lines. Surplus. Annulations.
    
    Ejectment. Case 109.
    Dec. 31, 1829.
   Chief Justice Robertson,

delivered the opinion of the court.

This is an ejectment on various demises, in the name of Gabriel Madison, and of his heirs and J. S. Bate and others,-against the tenants in possession, holding under the title of the heirs of Hugh Mercer.

The lessors of the plaintiff; claim under a patent to. Gabriel Madison; and defendants below (appellants here) derive their title from- the patent of Mercer’s heirs.

" Both are military rights, founded on the proclamation, of 1763.

The patent to. Madison, issued on the 23d of May,. 1785, and calls for “two thousand acres by survey, bearing date the 16th March, 1784, lying- and being in the county of Jefferson, on the Ohio, between the lands of Griffin and Mercer, and bounded as follows: Beginning at Griffin’s lower corner on the river bank, an ash and elm, south 83 degrees west, crossing several branches 327 poles, and continuing the meanders of the river, west 100 poles, in all 427 poles to two beeches and a sugar tree, corner to Mercer, and with his line south 48 degrees, east 540 poles, south 49 degrees, east 750 poles, in all, 1290 poles, to a white oak on the edge pf a hill, near Harrod’s creek, thence with Mercer’s end line, south 62 degrees, west 116 poles, to a beech and sugar tree in said line, thence south 38 degrees east, pressing Harrod’s creek 209 poles, to a Walnut, sugar tree and buckeye, on the bank of the creek, of the south fork of Harrod’s creek, thence north 52 degrees east, crossing two branches 448 poles, to a white walnut, and sugar tree, north 38 degrees, west 275 poles, to a beech and elm in Griffin’s line, and with said line, south 30 degrees, west 246 poles, to Griffin’s corner, five ash trees on a line near Harrod’s creek, and with his line north 38 degrees, west, crossing a small creek and two branches, 1130 poles, to the beginning.

The patent to Mercer’s heirs, is dated, September 1st, 1780, and calls for “three thousand acres by survey, bearing date, the 4th June, 1774, lying- and being in the county of Kentucky, formerly Fincastle, and bounded as follows: Beginning at the three Beeches and sugar tree, on the bank of the Ohio river, about 16 or 17 miles from the falls of the Ohio, thence down the meanders of the river, binding on the same, 350 poles, to two beeches and some sugar tree saplings, thence south 56 degrees, east 1448 poles, to a sugar tree, buckeye and lynn, thence north 52 degrees, east 340 poles, to a white oak on the edge of a hill near Harrod’s creek, thence north 49 degrees, west 750 poles, thence north 48 degrees, west 540 poles, to the beginning.”

By reference to the plat which is appended to this opinion, the nature and extent of the controversy will be perceived and at once understood.

The black lines 3 3 3 3, represent Griffin’s claim.

DWMX, represent Mercer’s three thousand acres as claimed by the appellants; but the plaintiffs below (defendants here) insist that the true boundary of Mercer’s patent, is ascertained by the lines from D to W and to M and to T and thence (black line) to Á S and thence to D, and the latter figure is that which the jury gave to Mercer’s boundary by their verdict.

Madison’s two thousand acres, as claimed by the defendants here, are represented by 3 D A S T, 15, F H R10, G 3 3.

The appellants insist that the true bouudary of Madison is 3 JD, and black line to X, thence to I, thence to H and to R 10, and G and 3, to the beginning.

The land in contest, is included within the lines D X ATA S D, which contain 2070 acres.

BBBB, represent the original survey of Mercer;

C C € C, represent Madison’s original plat, as filed in the Register’s office.

DWMTAASD, include three hundred acres.

3 I) X I H R 10, and around to the beginning, contained 3245, instead of two thousand acres.

Consequently, Mercer’s patent will cover five thousand seven hundred acres, instead of three thousand, if X ID, be his line.

And Madison’s patent will cover five thousand three hundred and fifteen acres, instead of two thousand, if his boundary can be extended to the line DASATF fi R, 10, &c.

Three of the corners of Mercer’s patent, to-wit: I) W M, are indisputably established, and are admitted. His lines are also, well defined by appropriate chops from the beginning, to T A. From T A to X, there is •no marked line, nor is either the line from X to D, or that from T A to S A and to X), marked with the exception of a few poles, from T A, towards A S and of a few poles from I) to A, no corner is found at X.

The corners, R 10, 3 G 3, are marked and admittted to be Madison’s corners. The line from H to R 10, is well marked, and so is that from R 10, to G. From 15 to F and from F to H, there are no marked lines, nor is there any marked corner at 1, or 15, or F.

On the trial, various instructions were given, and refused bj the court, which resulted almost necessarily, in the verdict of the jury, as rendered, which is as follows: “We of the jury, find the defendants guilty of the trespass and ejectment in the declaration mentioned for the land lying within the following bounds, to-wit: to commence at D on the plat, thence with the marked line, about 52 poles, to A, thence- to A S, thence to A T, thence 116 poles, to 15, thence to the end of the marked line, 40 poles from H, thence to H, thence to R 10, thence to 1 G, thence to 1 3, thence with Griffin’s line to his lower corner on the river, thence with the river to the beginning.”

The court having rendered judgment in favor of the plaintiffs below, according to this verdict, the defendants appealed.

Many questions have been argued, which grow out of the demises and proof, and out of the instructions and refusals to instruct, some of which involve tant principles.

But as a full discussion of all these would enlarge this opinion to an inconvenient bulk, and as the decision which we shall give on the question of boundary, will dispose of the whole controversy, after we shall have established the boundaries of the conflicting claims, it will be unnecessary to notice further, any other points presented by the record-.

The counsel on both sides, seemed to suppose that the decision of the case must necessarily depend on the establishment of the fourth corner of Mercer; and consequently, the whole argument was directed to that point, and to subsidiary facts and illustrations.

Whatever may be the consequence to the appellees, of fixing the last corner of Mercer, it would seem proper, as Madison calls for Mercer’s line, that this line should be ascertained and fixed, before we proceed to give to Madison, his proper form and position.

A careful and minute examination of all the facts in all the aspects in which we have been able to consider them, has led our minds to the conclusion, that the third line of Mercer cannot be extended b'eyond T A, and that, therefore, his last corner, must be fixed at that spot. It seems to us, that no principle which has ever been established by this court, will be violated, by placing the corner at this point; and that, not only will former decisions be overturned, but the stubborn facts and manifest reason of the case must be disregarded by establishing the disputed corner at X. The following, are some of the most prominent reasons for this opinion':

1st. The line is well marked from M to T A; there is no vestige of a mark beyond that point. The lines-, from the beginning to M, are also, well marked, and the corners at 13, at W and M, are plainly marked. It is an inference, therefore, as legal as it is rational, that, without some other controlling fact to the contrary, Mercer’s third line was not extended farther than it was marked.

That elonga-will indude6 great surplus, will have no theTourt °if the boundary of the land be clear]"-estah-lished.

2d. The di stance called for in the patent, is 350 poles. The ac^ua^ ^ength of the marked line from M to T AT 380 poles, exceeding the length of the line in the patent 30 poles. This is as great an excess over the call in the patent, as the difference betwixt the actual distance of either of the other marked lines, and their patent lengths would authorize us to expect. Not only-do the marks cease, but the distance also, is run out at T A.

3d. By extending the line to X, it is elongated 426 poles; so as to make its whole length 806 poles, the distance called for, being only 350 poles, and the actual distance from M to T A, being only 380.

4th. The extension will cross Harrod’s creek. It is probable that, if the creek had been crossed by the original survey, the fact would have been noticed in the report of the surveyor, and in the patent; hut the only allusion which is made to the creek in either, is in the call for a corner near to it.

5th. The topography about T A, corresponds with the description, in the survey and patent, of the place where the corner was marked. It is proved that at T A, there is a white oak lying now on the ground nearly rotten, and so much decayed, that, if it had been marked asa corner, the traces of the chops would not now be visible, and that this tree once stood on the edge of a steep rocky hill, near, and in view of Harrod’s creek, and which is so precipitous towards the creek, as to render a descent to the base difficult, even on foot.

There is no proof that there is any hill at X; or that the creek can be seen from that point; or that there is any thing else there, corresponding with the call in the patent; or that at any other spot, excepting that at T A, the natural objects designated in the patent have been found.

6th. The elongation of the line will include a surplus of two thousand and seventy acres. This fact should have no influence in either a court of law or chancery, ^f the boundary were otherwise clearly established,, But under the peculiar circumstances of this case, it is entitled,to have a persuasive,if not adecisive effect; cs-as is enormous surplus will be produced almost exclusively by the extension of the line from T A to X; the other lines being very little longer than the patent distances. This is a striking fact.

If establishiDg a corner at particular point give a figure to the survey obviously variant from that exhibited by the original plat; it is a strong reason for not establishing the corner at that point. Court will presume surveyor’s report tobe accurate and will accredit his official acts. Original plat is evidence of the most po tent kind.

7th. There is a marked line from T A, towards D 30 poles, as ancient as Mercer’s survey.

8th. By establishing X as the corner, a figure will be given to the survey, obviously and essentially variant from that exhibited in the plat of the original survey. The two plats are strikingly dissimilar. It is scarcely possible that, in a survey with only four corners, and the lines of which were all, except one, actually run and marked, so great a mistake could have occurred as that which must be imputed to the surveyor if the white oak corner be at or near X.

The official acts of the surveyor are to be accredited. The court must presume that he did his duty, and that his report is accurate, the more especially, as there is nothing which can tend to even a suspicion that there was any mistake or fraud. The original plat is not dnly admissible as evidence, but it is intrinsically one of the most potent facts which can be adduced; and hence it has been often admitted by this court as alwayseitherpreponderatingor alone conclusive.

By fixing the corner at T A, and closing the survey as the law and the facts prescribe, it will correspond, (with a very slight difference,) with the shape of the plat reported of the original survey, as will be presently shown.

The counsel for the appellants, urge the analogy between this case and that of Beckley vs. Bryan, and Ransdale, reported, in printed decisions by Sneed, page 107; and they insist, that, to find the white oak corner the patent courses should be reversed, and that where-ever a line from M, will strike one from D, pursuing the reversed courses in the patent, the law there fixes the corner. The cases are not analogous, and therefore, the argument,although it was ingenious and able, is not apposite.

If w have not been mistaken in the foregoing view, there is no necessity for resorting to that species of legal construction which the authority of the case in printed decisions and of many subsequent cases, prescribes.

When the facts designate the corner, there is no room for construction, nor necessity for the interposition ofthe court.

When the facts are insufficient the law interposes and directs the position of, the.corner.

If the facts designate the corner, there is no room for such an-expedient as the arbitrary construction of the court.. It is only when the corner does not exist, and the facts are insufficient to identify its position, that the law interposes and directs where it shall be. This is an act of necessity; and can be applied only where the necessity shall exist.

If, in this case, the corner at T A, were admitted, or if the facts were as direct and incontrovertible for establishing it, as they have been conceded to be as to other concerns, it would not be pretended that the rule in Beckley vs. Bryan, et. al. would apply, or could transpose the corner by making it yield to the experiment of inverting the course to find at what spot it will terminate. The lines and corners, as marked, are conclusive. The existence of a marked corner at T A, corresponding With that described in the patent, would only be one fact for identifying the corner. This is one species of evidence. It is not the only evidence, and sometimes is not the most satisfactory, The facts which concentrate on T A, and point to that spot as the place for the Corner, are, in our opinion, more cogent and less erring than would be the isolated circumstance of a white oak tree, being found (if such were the case) at X. It would be more probable that the tree was not marked for the corner, than that the host of facts which con-, verge at T A, shed a delusive light,

The corner is as clearly proved tp be at T A, as such a fact is susceptible of bein'g established. And although the evidence identifying it, does not possess so much directness and individuality, as that exhibited for the identification of the other corners; yet it is, when scruti-nised, even more conclusive. In relation to the other corners, we need only to suppose that one fact (the marked trees) might exsist, and that still the true corner which it tends to identify might be elsewhere. But, in relation to T A, many concurrent facts must be disregarded, before it can bp supposed that the corner was any where else than at T A; for example, the figure of the original survey; the age of the marked line, the distance, the peculiar hill, the creek; the marked line running off at right angles, and others which might Ire men fioned.

Correspondence between, °he annu-iations of the. timber is very Inden-tify the survey

^Tliere was a mistake, either in the patent course of the closing line, or in the distance called for in the third line, and in the plat of the survey. If the competition were between course and distance alone, the course should yield to the distance, because the conflict between them is not produced by a mistake in the course of any other line; see Preston’s heirs vs. Bowman, et. al. II Bibb, 494. This case reviews that of Beckley vs. Bryan, et. al. and applies its doctrines rationally, according to their principles; and it seems to us to be decisive of the question we are now considering. But it moreover shows that the original plat is.entitled to at least a preponderating influence. Consequently, the discrepancy between the original plat and that for which the counsel for the appellees, contend, ought to. be a sufficient answer to their arguments. But, combined with this, are all the other facts which have been stated, and the total destitution of any opposing circumstance, except the variation of some degrees in the course.

Without protracting the discussion, we are content to close it here; feeling well .assured, that, although the argument on this point might be enforced by many other considerations which we deem it useless to add, enough has been exhibited to establish the third corner at T A, Where we feel constrained to decide that it was and ¡shall be, and where the jury fixed it.

It remains, on this branch of the case, to determine how the survey shall be closed.

It is indisputably proved, that from T A, towards Jj, but on the course of north 45 west, instead of north 48 west, there is a marked line, 30 poles, corresponding with the date of Mercer’s survey. In 1824, some of the line trees being blocked, the annulations were fifty. The survey having been made in 1774, the lines had been marked precisely 50 years in 1824.

This exact correspondence, is not an infallible test. But after such a long lapse of time, it is believed that no single fact should have more effect. Although the annula, visible in the timber, are not unerring, they generally mark the time truly, to a skilful and experienced observer. Jacob Sodousky is, according to the tradition of the times, entitled to the credit of having discovered this] dumb evidence, provided by nature, for perpetuating the land marks of title. And time will develope the utility of the discovery, and do justice to the memory of the adventurous woodsman, whose sagacity made, and whoseSbenevolence revealed it.

Lines vey6whenSUr" marked, must govern, how-ftüerv?ifiant tent course.

We feel bound to consider this fragment of a line as a part of the true line. Therefore, it must be recog-nised as far as it goes; and so far the verdict is right.

The line when marked throughout, must govern, ho w-ever devious or variant from the course it may be. But we know of no decision by this or of any other court which requires that when only a section of the line is marked, the general course of that section shall, if vari-ant pom the patent course, be pursued where there is no marked line. Nor can we admit that such a rule would be consistent with truth or reason. We would suppose that, in such a case, after following the marked line to its end, the course called for in the patent, if it will lead to the corner, or if it will not, a course, as near that as will reach the corner, should be adopted. And such was the decision of this court, in the case of Wishart vs. Cosby, I Marsh. 382, and in that of Brown vs. Hobson, III Marsh. 382.

But,a] though there is no intermediate corner called for between T A and D, there are two calls for course, varying, the one from the other, one degree. There is an ancient marked line, about 50 poles long, from D towards T A; that is from D to A, on the annexed plat. The only proof to identify this as a part of the line of Mercer, is its course and its antiquity. There is no proof of its precise age; and therefore, it is not as well established as the line is from T A, in the direction to A S. There are other lines which are called ancient, but which, when scrutinised, are several years younger than Mercer’s survey; we are not disposed, therefore, to recognise the fragment from I) to A, as a part of Mercer’s line, especially as its course is erratic.

It will result, necessarily, that to ascertain and define Mercer’s boundary, a line must be run such a course from the termination of the line fromT A, ashy allowing a variation of three degrees (the variation shown in the other lines) and by changing the course one degree west, at the distance of 720 poles, (the length of the first course in the patent from the white oak, after deducting 30 poles, the length of the marked line) will lead to the beginning at I); if the actual distance from T A to D, is that called form the patent; otherwise, if the actual distance exceed or fall short of the patent distance, the excess or deficit should be apportioned between the two lines.

When subse-» quent paten-tee calls for line of a former patent, he may go to it wherever it be, provided it is a marked line; notwithstanding a great surplus may be thus included, unless to do it, be so repugnant to his other calls, as to show that he was mistaken.

According to a calculation which we have made, the line will be north 36 west, 720 poles to N;' north 35 west, 540 poles. But, in this calculation, we may have made some mistake. We have mentioned it only-to exemplify the manner of ascertaing and defining the true line of boundary. The line when ascertained, as herein directed, will be the closing line of Mercer; and will exhibit a figure, the fac simile of the original plat of Mercer’s survey, with the exception of the indent at the end of the marked line from T Ato(S; and this slight deviation from the original form, is produced by a mistake in the course of the line, the end of which was hastily and carelessly marked.

It would seem to follow as a consequence, from the foregoing adjustment of Mercer’s claim, according to the arguments of counsel, that the appellees jmust recover all the land in controversy, which will not be embraced by the boundary prescribed to the appellants. And a supe ficial view of the case would tend to the same conclusion, as Madison called for Mercer’s line. Our investigation of the subject has led us, however, to a different result.

If Mercer’s closing line had been marked throughout its whole extent, it could not be denied, that the line so marked, would be also a line of Madison’s boundary. Because, calling for it, he adopted it as it was; and wherever it was, he would have a right to go, unless it •had been so remote, and so repugnant to other calls of Madison, as thereby to show that in calling for it, he was mistaken. The simple fact of a surplus, extending to even more than a duplication of Madison’s proper ■quantity, would not be sufficient to establish such a mistake. Notwithstanding such an. unusual surplus, Madison would have as much right to go to Mercer’s line if it had been marked, as he would have to extend his boundary to a natural barrier, if there had been such, and he had called for it as his boundary.

But 'there is, in this respect, a palpable and essential 'difference betwixt an actual and an ideal line, or a ’marked and an open line. And as in the one case, Madison might be bounded by the marked line wheresoever it might be, (if he made no mistake) so in the other, he must be restricted to the’line as it appeared, to be, and as he believed it was when he called to adjoin it. In the first case, he would have a right to the marked line, because, being visible, he knew where it was, and therefore, intendeds, that as marked, it should be his boundary. In the last case, for the very same reason, wherever he supposed the invisible line to run, he must be bounded, because he intended when he made his survey to be, and therefore was bounded by it.

Is there any thing then in the record, which will show satisfactorily, where Madison supposed Mercer’s line was, when he called for it ? We think there is enough; and that it shows that he considered the courses and distances described in Mercer’s patent, as defining his true line.

1. It is undeniable, that Madison did not run the line from D. He either was not on the line, or if he were knew that it was not marked. In either event, the result will be the same, to-wit: that he knew Mercer’s line only by the courses and distances called for, and so adopted them. The fact that he calls for Mercer’s courses reversed; for his precise distances; and for his corner describing it, and the natural objects about it in the exact words, used by Mercer; would fortify this inference impregnably, if it needed any support.

2. Griffin’s line being admitted, and R 10, and I G being also admitted to be corners of Madison, T A could not be his corner, without disregarding other calls for courses and distances, and without abolishing some calls altogether. For example, the course from D must be greatly changed; and the distance from F to R 10 will be changed from 448 poles (the distance called for) to 920 poles. Or if the lines be run as the jury designated them, there will be courses and distances not only not described in the patent, but totally repugnant to. some of its calls; for example, from 1 5 to O instead of to F, and from O to H, making not only different courses, but different and moi’e lines and corners, not reconcilable with the patent.

3. The corner at H is established to bé a corner of Madison, as clearly as any other corner on the plat. The trees correspond. They are marked as corners.The age of the marks correspond; they are on the branch of Harrod’s creek as described in the patent. There is a marked line from II to R 10 proved and claimed to be Madison’s line; the distance from H to R 10 corresponds with that in the patent, as well as other actual distances correspond with the calls for them; the line from H lo R 10, is 500 poles long-, the distance called for in the patent is 448. A marked line about 30 poles long from H in the direction to X is shown, and we are well satisfied from the proof of the annulations and other facts, that it is a part of Madison’s line from the second corner called for, after the termination of the line from the river, to the walnut, &c. at H. Besides, it improved that H was admitted Vo be Madison’s corner.

4. There is no marked line to F¿ No corner at F, nor is there any marked line from F to H.

5. The foregoing facts and illustrations show that it is almost impossible, that Madison ever went to T A. The establishments of the corner at II would, alone, bé almost conclusive. And this corner is consistent with the line I) X which is the line described by the courses called for by Madison; audit is iri’econcilable with any other line; totally so with any line from T A to D.

6. Making D X I H, &c. Madison’s boundary, he will have, as before stated, a surplus of twelve hundred and forty five acres; by extending his line to T A, he Will have a surplus of about three thousand acres. The distances called for in his patent will include ■bbout two thousand aci'es, his proper quantity. These facts, for the reasons before offered, are of themselves Vei-y persuasive in such a case as this.

7. But by inference to the original plat, it will be seen that the figure coiresponds with that which we .are endeavoring to establish, and is essentially unlike 'that which the jury presented. The original plat exhibits a figure narrower at the upper end ( as from X to Z Griffin’s corner) than at the opposite end on thé river; and shows a line from G to Z much longer than that from X to I.

But the figure which will be exhibited, if T A be established as a corner for Madison, will be much wider at the end from, than that on the River; and will have a line from X to T A a great deal longer than that from G to Z. The two plats are so unlike, that it would seem to be impossible that the surveyor could have considered T A a corner of Madison. His plat corresponds with the figure which all the facts which wo have suggested, combine to identify as the land of Madison; and the correspondence is exact.

There is only one opposing circumstance. Madison calls to cross Harrod’s creek on the line from the white oak to the walnut, &c. atH. There is no difficulty in this, if we have not been mistaken in supposing that Madison did not run the line from D to X. He then assumed H as the corner from which he could run so as to make his two thousand acres, and marked a few poles towards X to show the course of the line, and to identify the corner at H. Hence, it -will be seen bj'-examining the course of the creek on the plat, that ho had good reason for supposing, that a line from X to R would cross it. And this accounts for his mistake.

As therefore,Madison intended that the courses called for in his patent from the river, should be his boun-' dary, and therefore, called for Mercer, because Mercer had called for those courses through mistake, and as ii. clearly appears, that the line D X 1 H R 10, &c. is the boundary designated in Madison’s original survey, and that he intended I) X to be his line, and will even by that line hold twelve hundred and forty five acres more than his two thousand, his boundary must be fixed accordingly. ■ It is evident, that he never saw the; piece of the line in Mercer’s closing line.

Wherefore, Madison’s claim must be restricted to the line I) I X I II, and around by Griffin’s line to the beginning.

It results, that the appellees had no right to a judgment for any part of the land in controversy; and therefore, the verdict and judgment in their favor are erroneous.

From the positions in which we have established both patents, the singular consequence also results, that about two thousand acres of good land claimed to be covered by each, have never been appropriated by either, and yet belong to the commonwealth, unless they have been granted to some other person or persons than Gabriel Madison, or the heirs of Hugh Mercer. This is the legal consequence of the facts as the record in this case exhibits them.

Petition for a re-hearing.

Clay and Crittenden, for appellants; Denny, Mills and Thruston, for appellees.

Wherefore, the judgment of the circuit court is reversed, the verdict of the jury set aside, and the cause remanded for a new trial, consistently with this opinion. In which trial, if the facts which shall be proved shall be the same, and no other than those which appear in this record, the verdict should be for the defendants below, according to the principles of this opinion. But if there should be other proof, the verdict may be regulated by it so far as the additional proof, and the principles established by this opinion shall allow; this opinion is founded on the facts as they have been presented to us. Other and different facts might qualify it, and authorize, a correspondent modification of the verdict of the jury.

The counsel for the appellees filed the following petition for a re-hearing.

The counsel for Bate feel themselves constrained to ask of the court, respectfully, a reconsideration of this cause, for the following reasons, to wit: /■

1. We do understand some facts in the cause, different from that which the court assumes them to be, in the opinion rendered.

2. The decision is new, and based on principles never before recegnized by this court, and such as -were not even asserted to exist, by the counsel for the appellants.

3. It is, with due deference, asserted that the principles assumed, conflict with former opinions of this court; that the conclusion drawn, is not sustained by the premises assumed; and that the reasons for the opinion are not reconcileable with each other.

We will give a specimen or two of the facts, which we conceive are assumed as existing in the record, and which we believe are not there. In doing this, we will use and refer to the diagram, annexed by the court, to the opinien'jdelivered.

lids assumed that there is an ancient marked line» from H towards l or X. Wejcanfind no such proof. On the other hand, it is clearly and positively shown to be not exceeding ten or twelve years of age, by counting the demarkations of the timber. The aniiquity of that line was not pretended in the court below. It is negatived by the- report of thejsurveyor and his oath, as well as other witnesses.

There is maritime mention made of an ancient line from H, but it is an extension from H towards F, and a simple continuation of the line from R 10 to H. This, is the one really mentioned as ancient, and corresponding with the survey, and it is difficult to account for its existence, if, as the court supposes, Madison stopped at JÍ. But if it is not the true corner, the solution is easy. It is this extended line which the jury mention, and name in their verdict.

The court seems to suppose that the jury rendered their verdict, extending from 15 to B, and thence to H. Such, it is believed, is not the form of the verdict. They never strike the line II I, or towards X, as the courthas laid their verdict down. On the contrary, they extend the line from 15, to the line from F to II, extended to a point 40 poles distant, from H towards F, and thence passing H to R 10. The true form of the verdict is laid down on the argumentative plat, attached to the brief of the appellee. There is, therefore, no such thing as abolishing calls,for making more-than the patent allows, as the court supposes. The verdict has, in this respect, the same number of courses which the patent gives, and the only variance between the patent and the verdict, is the difference in distance from R 10 to H, and 40 poles beyond II, and the difference in course and distance from, the end of that 40 poles to 15.

Now, let it be remembered, that on this point, there was no instruction of the court to the prejudice of the appellants, and excepted to. The jury, as we contended and still contend, ought not only to have extended the line, R 10, H, 40 poles beyond H,.but to a point that would be intersected by a line running the patent course from 15. If this had been the shape of the verdict, there would have been no difference between it and the patent, except the additional length that would have been added to the line R 10, H. This was what we wished to be understood as the true mark of closing the survey, instead of the mark adopted by the jury; for we could not see why the jury stopped the line 40 beyond H, where the marks stopped, instead of extending, according to all previous divisions, to the intersecting point. But as the jury had, in this instance, erred against us, we could not see how the opposite party could complain of it.

Again the court, according to the reference, supposes that we contended that the line should have been run from 15 to F. We certainly did not intend to communicate the idea, that there ever was or ever ought to be such a corner- as F, or such a line as F A. Such a figure and such a line was not conceived of by us, nor do we find evidence to support it. But if a line was extended the patent course from 15, till it would produce an intersection by the extension of the line R 10, H, then such a corner would be produced as would correspond with what we contended the figure to be. For we must insist, that finding the old line 40 poles beyond H, agreeing in the annulations is conclusive, that H is nota corner of Madison’s. No blocks were ever taken from the corner trees at II, and they are not shown to be as-old as the survey; andas the court remarks, they may appear ancient, but not ancient enough.

But to touch on the law assumed by the court. When fixing on the closing lines of Mercer, and deciding that the fraction, 30 poles from T A was the ancient line, the court concludes that the fraction ought not to govern the whole extent of the line, and says, “We know of no decision of this or any other court, which requires, that when only a section of the line is marked, the general course of that section, shall, if variant from the patent course, be pursued, when there is no marked line, nor can we admit that such a rule would be consistent with truth or reason.”

A similar assertion was made in the closing argument, which the counsel for the appellees did not repel, because, we thought it too well settled to need authority, To show the court that the uniform decisions of this-court is to the contrary, we wmuld refer the court to the case of Thornberry vs. Churchill and wife, IV Mon., 32, (a case expressly in point,) together with three other concurring cases there cited.

This court seems to think that the section, uif variant from, the patent coursef cannot govern the whole line. It is believed, that when the section is variant from the patent, is the very case in which it does govern. For if it did not vary from the patent course, what need is there of it, or the doctrine either; and why has the court been called upon to decide the influence of these sections of lines? Why say any thing about them, or notice where they lay on the patent course? The fact is, they control the patent course, and for that reason they are noticed.

The counsel for appellees cannot see how this doctrine is so contrary to, or “inconsistent with, truth or reason.” The existence of the section, proves that the original surveyor did not cause the line to be marked on the true corner. The line ends because the marked corner, or because the timber has disappeared by decay or the improvements of the country. Which way did it run after the marks cease? Is not the course it started the best index? Is it not a more natural presumption, that with an inanimate instrument, or with his needle cutting a mistaken degree, he had kept his codrse, than that he had turned it, and made an angle in the line which he returned, on his oath, to be a straight line?

True, if the corner is found ahead, the line, after the influence of the section ends, must bend towards the • corner. But if a corner .cannot be found, (as in this case, wíiere none is called for) at the end of the section running from T A, then the1 section is the proper index to the point where the corner is to be fixed, till the distance is ended. The plat and certificate, and patent, all of record, declares it straight; it is, therefore, right to say, the. surveyor run straight, though at a mistaken degree, than to presume and fix, by construction only, a crooked line against all the written evidence.

What makes the mode adopted to close Mercer still more objectionable is, if, at the termination of the 30 pole3 from T A, the course and distance is adopted, it is still less favorable to Mercer. But the court has, by construction, not dropped the influence of the sectional line to follow the patent in course* but to mark a course still more “variant” from that called for, for the purpose of closing. On these two closing lines of Mercer, if such they can be called, the calls for course in thfe patent, are evidently mistaken. Some other matter besides the course called for, must settle them. Is there. any thing that ought to have as much weight in doing this, as the part of one line still remaining evidently run by the originalsurveyor himself? The authorities referred to, settle this, or settle nothing. The reliance placed on the figure of the original plat of Mercer, liray be hereafter noticed*

But the part of the opinion under consideration, which tears Madison from Mercer, and stops him far short of Mercer’s objects, though he calls for them, is that which deserves the most serious consideration, not only because it is of the most serious consequences to the appellees, but because it contains doctrine entirely new.

The court correctly decides, that no limitation given to surplus, can so operate as to stop those claims short of the objects called for, and it is also conceded, that if the objects called for, are objects actually existing, and can be found, the surveys must run to them, at the expense of all other calls, and even at the expense or destruction of the shape of the plat and certificate.

But the position which is called new, then follows, to-wit: that if the objects called for are idealj or the lines called for are not marked, then the adjoining survey shall stop short thereof, and has no right to extend to them, disregarding of other calls. It is a doctrine' never heretofore applied in adjudicating on boundary in this country, so far as we know. It was not advanced by the learned counsel of the appellants, so that it might have met a reply. Its consequences are not easily foreseen, and as there are many lines left open, owing to the witchery in which surveyors acted, and the dangers that surrounded them, it may be fatal. For it is a doctrine that will rend bounds and limits, hereafter to be fixed by a series of adjudications.

With due respect, the counsel for the appellees, will venture to assail this position. It is an old and valúa- . ble maxim, id c rium est quad cerium rcddi potest. Sup- . pose a grant to be made in a square, and the surveyor has in fact run one line, and'marked the corners at each end thereof, and the grant lies On this base, and extends the course and distance, and names even supposed ‘corners, which do not exist in fact, and that another grant lays its base parallel to the demarked base of this, ata great distance from it, and with its base miso actually run, and no more, it calls to extend to adjoin the first on its open line parallel to the base; must such a call be disregarded? Could not the real position of the ■open line of the first grant, be ascertained by survey? and ought not the other to come to it? The court seems to say not. If the course and distance of the second came precisely to the line of the first, we suppose it must adjoin. But let it be supposed that it comes Within 5 poles, 10,100 or 500, must it have the vacancy between the two? Would it be required that it should leave the vacancy of 5 or 10 poles? It would seem unreasonable to do so. If these numbers can be allowed, what will be disallowed, and at what number of poles will the extension cease? If the doctrine be correct, it must leave out even one, and this will, among the great blotches of military surveys on Elkhorn and Beargrass, which extend even hundreds of poles to reach the open lines of each other, for which they call, leave out large quantities of land hitherto believed to have been appropriated. It is conceived that it cannot, with propriety, be said, thatt’nese supposed grants would be invalid at this day. A grant from the government, fixing the ground with certainty, is now good, although the surveyor may have failed to do his duty.

But if this doctrine be correct, the court has not-Correctly applied it. For there is no greater evidence that . the surve) or wasever at Mercer’s upper corner at D, on the riveri) than that he was at T A, off from the riven He called for them both by adoption, without visiting them, as certainly with respect to one as the other; yet Madison’s line, 3 D, on the river, is proved to be 100 poles too long or near it, yet the court has led Madison down to D in violation of the principle, and yet cannot .permit him to stretch a little further to reach T A. We Would inquire, at what distance betwéen the two points he must stop. _

_ We would also respectfully insist, that the doctrine, if sound, cannot apply to this case, and that the princi-pie of adjoining surveys reaching actual boundary, must apply.

Let it be recollected, that the corner at D, on the river, is fixed and certain, and was actually marked. The court has also ascertained, that the corner at T, is also fixed, certain and marked. Now, the extremes of this open line or lines are actually existing marked boundaries, and the line between them can be fixed, if not as contended for, at least as the court has settled it, by construction. Here then are two actually existing objects, such as the court has said a grant must reach to,, and yet it is permitted to reach one, but is forbidden to touch the other! Add to this, there is a line leading from T A towards the river 30 or 32 poles, which the court has correctly determinedto be the actual marked line, done at the date of the original survey; and there is no such marked line leading fromD, as the court has ■determined, yet we are allowed to reach 1) without a line, and refused permission to come to T A, possessing both a corner and thirty poles of the line to be adjoined-.

Still more, the patent of Madison not only calls for the corner at T A, but runs from it with Mercer's back line. Its calls are “then with Mercer's end line S 62, to (“his precise course”) 116 poles to two buckeyes and sugar tree in said line." Here, certainly, is not only the corner T A, and a sectional line of 30 poles towards the river, but also 116 poles move ofline, marked beyond all question, according to both proof and verdict, called for to be adjoined, and yet the court will not permit us •to adjoin! There is a positive call for two existing corners, and 148 poles of actual marked line, made long before, and a corner on one of them, and only one corner is allowed as a good call, and the other at this great length of line forbidden!

We would, with deference, ask by what rule can this he done? If thus much actually marked lines and two ■corners will not allow us to approach,how much would? How great extent of marked line between T A and I), ■and from T towards M, permit junction? This limit would be hard to settle, and if anew rule is indefinite j an<^ no^ susceptiMe of. a reasonable limitation, it is a good reason for its rejection. We cannot^ therefore, forbid the hope that the court will apply the rule first spoken of in the opinion under consideration, that “if Mercer’s closing line had been marked, [throughout its whole extent,] it could not be denied that the line (so marked) would be also a line of Madison, beacuse calling for, he adopted it as it was, and wherever it was, he would have a right to go.” Such a rule with the small exception which will be noticed, has been the uniform rule of this court since it'had existence, as will be shown by numerous authorities. Rut even in this rule, we do not admire the expressions, “throughout its whole extent.” It is enough if it is partially marked. Can the -court mean to say, that an omission to mark for 5, 10 or 100 poles would be fatal to the call? Suppose the line to have run through a prairie for part of the distance, must the call be lost on that account? It is sufficient, if enough is marked to identify it, and render it capable of being found and known. Enough to give certainty, is enough to make it a good call, and that will save the grant. We are unable to discover thatmore is necessary to answer the reasonable demands of law. We cannot help remarking, that in all this, the court has not once named the actually marked end line of Mercer, for 116 poles. This is marked throughout, and why then will it not answer as a good call for ,the adoption of Madison?

We now pass to another consideration. The court assumes the fact that H is certainly marked for Madison. It is not enough that the court should be satisfied of this fact while revising the verdict of a jury. There are facts and presumptions conducing to prove both the affimative and negative of this, and if the jury had found either way, this court ought not to disturb the finding, according to well settled authorities. The jury, as has been shown, did not find the fact, but found the line, as has been shown, to extend 40 poles with the ancient marks, beyond H towards P, and then stopped, and only name 11 in the verdict, as an object by which •the line passes. We, therefore, respectfully submit the question, whether the court has not gone too far in oversetting the verdict, by finding this fact against it.

Let us, however, concede for a moment, that H was marked for Madison, and that the surveyor, when making the survey, barely started from Griffin’s lower ner, on the river, or if you please, at Griffin’s lower outward corner, and then run with his line to G, thence to R 10, thence to H, and that he there ceased, and supposed lines, by the calculation of the distance on the river, and the mistaken calls of Mercer’s supposed open lines, running from the river, that he would, according to his calculation, drop on Mercer, by a line of the patent course from H, and that he would then go with Mercer’s end line to his corner, and with his lines to the river. But that in making his calculation or protraction, he was deceived by the mistaken calls of Mercer, running from the river, and that when his mark was actually surveyed, as the court has protracted, he would not touch Mercer, and extend with his end line 116, to the corner T 'A, but would have to run to a point opposite to 15, and then to 15, to do so; and under this mistake the grant issued; can it be maintained that the grant is limited by this intention and mistaken calculation of the surveyor, by the words of the grant? Has the government a right to say to him, “your grant must be limited by what your surveyor intended in his own mind, and not by its calls, and that upwards of half a century after the grant has issued, and after all the agents concerned in making the survey are no more?” Precarious indeed will our land titles be, if the intention of a surveyor, inferred from circumstances thirty years after his death, is to overrate the express calls of a grant, forty years after i t issued! It Is a clear principle, that if the surveyor was alive, and was introduced to prove his owm acts and thoughts, for the purpose of destroying the effect of plain, palpable and certain calls in a grant, he would not be competent. How then can his presumed intentions effectuate what his oath could not? The grant must be ruled by its positive calls, if they can be found, (and they can here, without a doubt,) instead of any other proof.

Butthe court, from the circumstance of this supposed running of the surveyor, and the absence of lines 50 years afterwards, after the end of 40 poles beyond H, and from a corner opposite to 15 to 15, has inferred the intention of the surveyor. If his intention could limit the grant, are not these circumstances toofweak? Is it not hazardous to conclude, that these never were lines, because they cannot be found at this late day, after so much time for the decay of timber, and so much destruction thereof by the rapid improvement of the country? And yet, from the absence of lines now, the court has inferred that the surveyor never intended to make them, but called for them at a supposed place where they were not, and the court now says, the grant shall go to the place where we suppose the surveyor intended, and not where they are actually found,7as the patent declares.. One intention, however, is evident, from the grant and from the surveyor himself. He certainly intended to appropriate and include all the land between Griffin and Mercer, and some land extending beyond and back of each list, there might not he enough. This, it is contended, is so evident, that it is sufficient to overrule all other inferences, even that potent evidence taken from the forms of the original plat.

To draw Madison/rom Mercer,fwould, by the same process of reasoning, ultimately draw him from Griffin, when assailed on the other side,and thus leave him vibra-r ting on his base from one to the other, as an assailant on either should give the impulse, and leave him nothing but the land common to the two surveys, each by course and distance, adjoining, the first, Griffin; the last, Mercer. For what is there to attach him to one more than the other? He calls for the two corners, the side line and part of the end line of Griffin; so he calls for the two corners, the side line or lines, and part of the end line of Mercer, what is the power of attraction which draws him closer to the former than the latter? We answer, nothing but an additional number of marked trees, and they add the preponderance of magnetic power; for there are certain objects on both sides.

To go backto supposed mistakes andhidden intentions of the surveyor, a supposed case may account for all the difficulty. The surveyor who made Mercer’s survey, began at his upper comer, on the river, run to the lower one, thence to the outer lower corner, thence to T A, thence towards the river, such a course as he had calculated would close, and ceased, designing to close by calculation; and after he made his calculation at home, discovered that it would require a change of his course of one^degree to’bring'him to his beginning, on the river, and in tliis was he mistaken; and what produced (he mistake? Why, simply this. He had made all the lines longer than their tiue distance, and particularly, Mercer’s line upon the river, and thus his calculation on the distance of his notes or protraction was mistaken. For if the surplus distance be cut from Mercer’s lines, on the river, and all his lines put to the true length, it will be found that the courses of the two closing lines will close the survey or near it. 1'his solves the mistake in his closing lines. Now, if his intention and mistake is to control the' grant, as is supposed by the court in Madison’s case, Mercer ought not to reach his two upper corners; because, although he has two corners, one at 1), and the other at T A, yet the line or lines between them, for which he calls, have no demar-kation, and is an open or ideal line, and therefore, according to the reasoning of the court, he ought not to violate distance ¡to reach it,^because it is an understood, and not an actually marked line. It may be answered, that he must go to his actually marked corners, at D and T A. To this we reply, the reason is eq ually strong, that Madison should come to the same actually marked corners, and the call for them in the latter grant is, and ought to be equally as potent as the same calls in the former; for the court admits, that surplus cannot limit them, if actually marked.

The foregoing supposed mistake, will suffice to explain the mistake in both grants, but as we conceive, this mistake, which produced the one marked by Madison’s surveyor when at H, ought not to limit the grant, and it follows, that the mistake of Madison’s surveyor, ought not to have hadsaigreater?effect.

If H be the true corner of Madison, as the court supposes, it follows that Madison’s surveyor was misled by the mistake of Mercer’s, and its effect wa§ increased by a mistake of his own. For lie took Mercer’s survey from his record, calling for a base, on the river, of a certain length, when it was, in fact, far longer, and he added thereto the mistake of nearly 100 poles additional distance, on the river, in Mddison’s line. These two mistakes, together with an increase on other lines, added to the demand of a longer out line, parallel to the river, to drop Madison’s survey on both Griffin and Mercer, and this accounts for all. But this can and ought not to control the positive call of either grant for actually marked boundaries, and both do. call tor such boundaries.

Se ^petition

The surveyor of Madison had a right to adopt Mercer’s survey from his records. It was evidence of what it said, (and evidence that ought not to be controlled by presumptions) and the original act directing surveys permitted the surveyor to adopt water courses, as well as the boundaries of others for his survey, and now, because there is a mistake in distance only, shall that mistake keep him from coming to actually existing objects.

We will here give a short answer to the figure of the original plats. It is no • part of the title. In many, the original plats were never returned, but only certificates. How can that shape control the calls marked boundaries, which alter the shape? This is against the whole current of decisions. Actually existing objects will overrule shape as certainly as an actual marked line will overrule course and distance.

Authorities on this as well as other points will hereafter be appended so soon as the time of counsel shall permit them to be collected.

In a case so important the counsel indulge the hope of a re-hearing.

Chief Justice Robertson

delivered the following response to the petition for a re-hearing.

We had carefully examined the record before an °P™on was formed on the case.

The confidence and positiveness of tbie petition, and the surprise frequently expressed in it by the counsel, have induced us to re-examine all the facts; and the result is a clear conviction that we have not been mistaken in either the facts or the law.

As to the fragment of a line from H towards X, there is no room for any doubt or contrariety of opinion whatsoever.

In the able and elaborate brief filed by the counsel for Madison’s heirs, the fact that there is such a line, is Unequivocally admitted.

In the argument it was conceded by all the counsel, that there was such a line. The existence of the line is proved in the record abundantly; and in relation to this fact, there is no discrepancy, except as to the age of the line.

One witness (Woolfolk) proves, that about twenty years prior to the time when he gave his testimony, he saw, and traced and examined the line; that it was plainly marked; and was then an ancient line. Speaking of the corner trees at H, on which were ancient marks then, that is about twent-four years prior thereto, he says, “from that place I found a line of ancient appearance "a short distance, nearly in the patent coarse.” There is other positive proof to the same effect.

There is not apartide of proof, that there mas a marked line running a few poles from H towards F.

Woolfolk also stated, that ever since his first examination, he had considered the lines and comers which he saw, to be Madison’s.

As to the verdict of the jury, there is as little room for doubt. The verdict established the line from 15 to 0, and then to H. The plat certified by the clerk with the record, shows this fact so clearly, that it is difficult to imagine'how there could be any diversity of opinion in relation to it. The argumentative plats filed by the counsel in -the case, show it also; and wé never heard a doubt of it suggested, until the petition was filed. The brief of the counsel for Madison’s heirs admits that the jury fouñd H to- he one of Madison’s corners.

The verdict fortifies the evidence which tended to establish a line from H to O. And according to the argument in the petition, in relation to another line, the finding of the jury, should be conclusive as to the line from H to O. And Woolfolk swore that the an-nulations counted 39 or 40, and that the counsel for the appellees were challenged to deny it.

We are still of the opinion, that we prescribed the proper and legal rule tor ascertaining Mercer’s line from the termination of the marked line from T A to the beginning. Our confidence in the rectitude of the opinion on this point, is not shaken by the authorities' cited in the petition. We had examined and duly considered these before the opinion was delivered. We thought then and still think, that they have no application to this case.

When part of ■a line only is marked, and no corner is found to whiohitleads, its general' course should he extended the proper distance, arid the lost corner will be fixed, at the point where the distance terminates. Provided, there is nothing else to control it.

They only establish the doctrine, that when a part of a line only is marked, and when there is no corner found to which it will lead, its general course should be extended the proper distance, and that the corner will be fixed by construction, at the point where the distance shall terminate; there being nothing else to control it.

But here, it is necessary to run to the beginning; that is established. The course of a fragment of a line from T A, will not lead to, and scarcely towardp the beginning. No intermediate corner is called for. And the line called for in the patent is rectelinear with the exception of an inflection of one degree.

How then is the beginning to be reached ? The answer seems easy; and to our minds is self-evident; it is given in the opinion.. Suppose the line had been marked only 10 feet, and in a direction varying 45 degrees from the patent course, and the course which would lead to the next corner. Must the erratic course of the line of 10 feet length, he pursued? Where will it terminate? Or suppose only one tree be marked as a line tree, and that should be oif the course. How shall the line be run to the next corner? Surely as near the patent course as will terminate at the corner.

We do not wish to reason on this subject; and therefore, content with what has been suggested, and with the direct authorities cited in the opinion unopposed even by a dictum, so far as we know or believe, it is proper and necessary that we should forbear to amplify.

Nor are we disposed to change the opinion 'on the main point. Madison cannot be allowed to extend his survey beyond where he believed Mercer to be, to where we have fixed him.

The establishment of the corner at H, and from the line from H to 0; the shape of the original survey; •the courses called for; the quantity of land; the surplus, and many other facts, leave scarcely any ground for a doubt to stand on, as to the true boundary.

If Mercer had been 10 miles off, must Madison be extended to his line? Certainly not. Why not? He calls for his line. The reason why Madison would not be allowed to expand his survey, so as to* cover all the interjacent land between the line which he supposed to be Mercer’s, and the remote boundary which -is ascertained by the judgment of court to be Mercer’s true line, is only because there was an evident mistake in the opinion as to the location of Mercer’s line.

The evidence of mistake, in the case supposed would be but little, if any, stronger than it is in this case. There are many concurrent facts which show, beyond a reasonable doubt, that in calling for Mercer, it was believed that his call for course and distance, described his true line. This course and distance, therefore, to Madison's line, as we have established Mercer so far from it, as to show Madison could not reach him, without disregarding some of his calls for corners, courses and distances, and without violating what was the clear understanding of Madison or his surveyor when his survey was made.

That the shape of the original survey is evidence and persuasive evidence of the boundary of the original, has been too long and too firmly settled by his court, ■to render it proper now to reason on it; or array authorities in its support; see however, on this pointy, Steele vs. Taylor, III Marsh. 226.

The reasons for limiting Madison by the course called for by Mercer, are obviously inapplicable to Griffith’s boundary. Not one of the various arguments which establish the one position, tends, in any degree, to countenance the other.

Griffith’s lines were marked; they are where they were supposed to be; as to them, there was no mistake'.

Madison begins at Griffith’s corner. From H to R 10, and to Griffin’s line, Madison’s lines and corners are ■marked and well established. The corners were actually made and the lines were actually run; and there is not only no fact which can tend to create a suspicion that these were not his lines and corners, but there is 'conclusive evidence that they were.

But from H towards T A, there is no corner, no line; it is impossible to get to T A, without disregarding calls for course, distance and corners; so essentially as Prove beyond a doubt, that M adison was not at H; di d not know where it was, except from the course and distance called for by Mercer; and that these were what ]le established for his survej'. He did not, therefore, call for Mercer, because he intended to adjoin him wherever he might be; but solely,because he took it for granted, that his calls for course and distance designated his true boundary. This conclusion is further fortified by the fact that, if Madison had known that T A was Mercer’s corner, he would have known that he could appropriate his two thousand acres, without adjoining both ’ Griffiin and Mercer. But if Mercer’s course had been, as Madison supposed, his true line, he would not have been reduced to the necessity of protruding his survey beyond Mercer and Griffin, in order to get two thousand acres.

If Mercer’s line from his beginning to T A, had been marked and actually run, then still, Madison might not have a right to make it his boundary, if it clearly appeared that he was mistaken in calling for it. But then we should require much stronger evidence of such mistake than we should do, when the line was defined by course and not by marks.

The fragments of marked lines, cannot affect the case. Madison never saw them; and, therefore, in calling for them he was governed by the course alone. It is plain to us, that he supposed that Mercer’s course was at X. It is also evident that he fixed his own corner at H, and ran only to O; intending that Mercer’s course and distance should be his remaining1 boundary; and that, therefore, the better to identify the boundary he described it as Mercer’s. If Madison had marked the corner at T A, as his, or if knowing where it was, he had called for it, then other repugnant calls might be controlled. But for the same reason, in this case, the repugnant facts must control the mistaken call for Mercer’s line.

Suppose, after establishing and marking the corner at II, Madison, intending to go directly to D, on the river, and supping that Mercer’s line (as it would do according to its described course) would lead to the river at D; had called to run the course called for by Mercer to D; would it not then be undeniable that he did not go to T A, and that he did not intend to go there? Suppose, in addition to the call for the line, he had also called, (as would have been very natural) to pass his corner, would that change the result? Surely not.

Fact that there is a surplus will not necessarily and alone control positive calls for corners and lines.

If Madison went to T A, or if knowing where it was, he intended to go there; or if, without knowing where it was, he intended to go to it, wherever it was, he might be allowed to hold to it. The opinion states some of the reasons why we believe that he intended that his line and corner should be where he supposed Mercer’s were.

And, therefore, as the court erred in its peremptory instructions, the judgment should be reversed. But if, as the opinion intimates, such facts shall be proved as will be sufficient to satisfy a jury, that Madison intended to make and did make T A, where we have fixed it, his corner, and that his mistake was only in his other lines and corners, and courses, and quantity and plat, then, of course, they might find accordingly. The correspondence of objects found, with those called for, is a fact which may tend stronly to identify a survey; and this fact is a proper one for the consideration of a jury-

There is nothing in the opinion in thi: case, which can affect military or other claims merely, because they may contain surpluses. It is only where the surplus results from mistake, that it will be curtailed’; and the claimant will be circumscribed.

The simple fact, that there is a surplus, would not necessarily and alone control positive calls for corners and lines.

What shall prove a mistake, must depend on all the facts of each case which may arise.

Content with the opinion as it is, and was intended to be and ought to be understood, we must overrule the petition for a rehearing.  