
    Supreme Court of Errors and Appeals. Nashville.
    1823.
    RUCKER v. VAUGHAN.
    
    Ejectment.
    To establish the beginning and other corners it is not indispensably necessary that they should be marked, if they can be established by other descriptions sufficiently certain to enable the surveyor, chain-bearer, &c. to find them.
   Haywood, J.

The question is, whether E C or E D be the boundary. The evidence proves that the corner at D and that at E were very probably made for corners at the date of Shelby’s survey, and that E C, to a point considerably east of H, was made at the samé time. And if the jury believed all this, then they should have been instructed to consider this line, as far as it went, the boundary, of Shelby’s grant, and also a line from the point where it ends to D. The probability is, after the lines AB, B C were run, that the surveyor next run A E and part of E C beyond the point H, and stopped, finding that, if extended, it would not terminate precisely at D, or the chinkepin, elm, and hickory. In 1808 Harris adopted the survey made for Hadley by Donelson in 1797, which called for the walnut at F, the line from thence to the red-oak and sugar tree H, and the said corners were then marked, and the said line also, and then had the appearance of an old line. This walnut, F, was called for as the corner of Bushnell and Dobbins, and in the survey of the latter it was described as standing east of E, in a line of Shelby, a certain distance after crossing the river, and at the corner of Bushnell and Dobbins’s tract. This description, and the evidence of Harris, leave no doubt as to the line F PI being the south boundary of Hadley’s tract; and though the surveyor did not mark the corners called for, the same being marked already, yet both description and evidence showing the walnut and the line running east from thence to be the beginning and first line of Hadley's tract, it is immaterial by what means the beginning or other corner can be satisfactorily established; the same shall prevail though not marked. As if the corner be a walnut-tree at the mouth of a branch or fish-bole, or remarkable rock, or identified by any other description which can serve to identify it and enable the surveyor, chain-carriers, markers, and others to know and prove it. What would become of all the surveys made in 1792, and returned into the Secretary’s office, if marking the beginning corner or line, or other corner, were so indispensable that the survey could not be proved -without it ?

Note. — In the original report a diagram is referred to as at the end of the volume, hut no such diagram was in fact inserted. — Ed.

BROWN, J.

It is exceedingly probable that the line E C, so far as it was run, was the north boundary of Shelby’s tract. If, however, it was only reputed to be so, and was called for by the surveyor of Hadley’s tract, that shall be the boundary although the real line is not'that, but another, at another place. And that this was the reputed line which the surveyor called for is little short of certainty.

Whyte, J.

was of a contrary opinion.

Judgment reversed, and the cause remanded for a new trial in the Circuit Court.  