
    Pumphrey’s Lessee vs. Ashpaw.
    caiLf 'T f '“vis surveyed in’ 1694 1695 Another cal” cdG c, was veyed m 1796, am! patented in 1798, _ This last tract is described in the certificate ana grant as beginning- at a Stone heretofore planted m the place or spot where formerly stood a bounded red oak, (lie last bounded tree of a tract of land called 5 JF. and running fioin thence reverse of the *hird line of S F and bounding thereon, as now laid down with an allowance of forty-five minutes* for'variation ike, — Held* that theiiist line of the tract of land called G C, m«*t be run fom the stone described as the plate of beginning; according- to the survey mad** of Sí* m 1796 (the tmv- when G C was, taken up,) with an allowance of forty-five minutes for variation, as expressed in the ctr*fieate und gumhAfld-not according to tho-true loca» tio&ofS Ft as SF was originally surveyed in 1694,
    Error to Anne-Arundel County Court- This was an -action of ejectment, to recover a tract of land called The Addition to GoznelPs Chance. Defence was taken on warrant,and plots were returned. ’ r
    
      I. At the tria! the plaintiff, (the appellant,) with other testimony, gave in evidence the patent of the tract of land called Smith's Forest, surveyed the 6th of March t694 for, and granted to, Philemon Smith, on the 10th of November 1695, and described as “lyiug on the south side of Curtis's creek, beginning at a bounded pine standing in the line of a parcel of land formerly laid out for Maurice Baker, and running with the said line S S E 484 perches, then W S W 60 perches, then N W 536 perches, to a bounded red oak standing by Curtis's creek, then N E by E 43 perches, then by a straight line to the first bound pine, containing and laid out for 200 acres of land more or less.’* He also read in evidence a patent of a tract of land called The Addition to Goznell's Chance, surveyed on the 25th of November 1796 for, and granted to, George Ashpaw and John Howies, on the 2d of August 1798, aud described as “beginning at a stone planted in the place or spot where •formerly stood a bounded red oak, the last bounded tree of a tract of land called Smith's Forest, and the beginning tree of the original tract of land called Goznell's Chance, which said stone is also the beginning of the original tract of land called Love in a Village, and running from thence reverse of the third line of the aforesaid Smith's Forest, and bounding thereon, as now laid down, with an allow» anee of 45 minutes for variation, S 23° 15' E 559 perches, then S 66° 45' W 75 perches, then running with and bounding on the third line of the original Goznell's Chance, as now laid down, to correspond with the beginning of the aforesaid Croicche's Forest, N.” &c. The defendant then prayed the opinion of the court to the jury, that the land called The .addition to Goznell's Chance must be located so as the first line thereof shall bind on the third line of Smith's Forest, as that trac: was originally located. The Court, [Chase, Ch. J. and Ridgely, A. J.)¡ were of opinion, that it was the right and province of the jury to decide what was the proper allowance to be made for the variation of the compass according to the evidence; and that the jury having first ascertained what was the true location of Smith's Forest, that then the first fine, of The Addition to Goznell's Chance must run with the third line of Smith’s Forest, according to the true location of that tract. The plaintiff excepted.
    2. The plaintiff then prayed the opinion of the court t» the jury, that to ascertain the trué location of The AddF tion to Goznell's Chance, the third line of Smith's Forest must be run as it was located at the time the resurvey sailed The Addition to Goznell's Chance was made. This Opinion the court refused to give. The plaintiff excepted* and the verdict and judgment being against him, he brought a writ of error, returnable to this court
    The ciiuse was argued before Buciíasta», Earle, lott’i-son, Martin, and Dorsey, J„ •
    
      
      Stephen, tor the Plaintiff in error.
    ■ Magruder, for the Defendant in error. He cited Green VSt McClellan, (Ante 200.)
   Buchanan, J.

delivered the opinion of the Court.-’ After stating the facts he proceeded. The point in controversy is, how the first line of The Addition tv Goznell’s Chance ought to be run from the stone described as the place of beginning, whether according to a survey of Smith’s Forest made on the 25th of November 1796, (the day on which The Addition to Gozneli’s Chance was taken up,) with an allowance of forty five minutes for variation, as expressed in the certificate and grant, or according to the true location of Smith’s Forest-, as originally surveyed on the 6th of March 1694? There is no difficulty in expounding the grant of The Addition to Goznell’s Chance. The words, as now laid down with an allowance of forty-Jive minutes for variation, with reference to ¡smith's Forest, are not used to show the true location of that tract of land, but to describe the manner in which The Addition to Gozndl’s Chance was run when originally taken up. There is no ambiguity, latent or patent; the position ot the land, as it was originally laid down, is clearly described; and the question is not, how a general indefinite call (in the description of a junior,) to the lines of an elder tract of land, should be gratified, which need not be here examined; but whether the expressions in a grant, particularly designating the manner in which the land was originally surveyed, shall be held to control the location, or be altogether rejected.

As a general positron, nothing is more clear, than that the description contained in a grant shall govern, and that the land intended tobe conveyed, shall be ascertained and pass by the description so given, and no reason is perceived for distinguishing this from any other case.

It is not important what the true location of Smith’s Forest is, or what allowance for the variation of the magnetic needle would have been necessary and proper to ascertain its true location, when The Addition of Goznell’s Chance was surveyed — Whether forty-five minutes or forty-five degrees — The intention was, that the first line of The Addition to Goznell’s Chance should be regulated, not by what might be the true location of Smith’s Forest, but by a running of that tract of land on the 25th of November in the year 1796, with an allowance of forty-five Minutes for the variation of the needle, as distinguished from the original location; and to give to it any other location, would be, not only to defeat that intention, and entirely disregard the expressions of the grant, by which it is manifested, but also to depart from the actual original running of the land — And for what purpose? Surely not for the greater certainty; a specified allowance for the variation of the compass being clear of all doubt, and the true original location of Smith’s Forest, wholly uncertain, and only to be ascertained by matter dehors the grant. Every tractof land ought to be located as it was run when originally taken up, if that can be done consistently with the expressions in the grant; and such is the particular description given in the grant of the manner in which the first line of 7'he Addition to Goznell’s Chance was originally run, that if one is gratified, the other must be effective. But if that, description is departed from, the original running of the land must also be disregarded. We do not, therefore, concur with the court below in the opinion expressed in either of the bills of exceptions, but think that The Addition to Goznell’s Chance, ought to be located according to the expressions of the grant.

Johnson, J.

The only question arising in this cause, is, ■Whether those lines of The Addition to Goznell’s Chance, that call to run to, and with lines of Smith’s Forest, must run to, and be governed by, those lines, according to the original location of that tract.

The expressions in the certificate of The Addition to Goznell’s Chance, are running to the line of Smith’s Forest, as now laid down with an allowance of forty-five minutes for variation, and then running with several lines of that tract as laid down with the same variation. It is not recollected, that a question precisely like the one now before court has ever been submitted to its consideration. If The Addition to Goznell’s Chance must run to, and be governed by, the original location of Smith’s Forest, and the jury should find that location not to correspond with the location made of that tract by an allowance of forty five minutes for variation in the year ¡796, when The Addition to Goznell’s Chance, was taken up, then it follows that that, tract would have a different location than was plainly and expressly given to it when the survey was made, and the expressions of the certificate, os now run with forty five minutes for variation, must be rejected. If the jury should find the true location of Smith’s Forest to be as it was run in the year 1796, with the variation mentioned, then The Addition to Goznell’s Chance would correspond with the original location; but as the tract called for is, in the tract calling for it, described as then run in a particular manner j I am of opinion that The Addition to Goznell’s Chance ought not to have been confined to the true original location of Smith’s Forest, and that the court below erred in directing the jury that the true original location of Smith’s Forest must control The Addition to Goznell’s Chance. I therefore concur with this Court in pronouncing that the judgment of the Court below be reversed.

JUDGMENT REVERSED.

The Court of Appeals, in expressing' their opinion in this case, reject, or lay no stress upon the most material parts of the description of the running of the first line of The Addition to Goznell’s Chance• The Addition to Goznell’s Chance begins at a stone, being the place where the last bounded tree of Smith’s Forest stood, and running from thence reverse of the third line of Smith’s Forest, and hounding thereon. According to these expressions, it is plain the intention was to make the third line of Smith's Forest the boundary to the full extent of that line. The first line of The Addition to Goznell’s Chance was to run with and' bind on the third line of Smith’s Forest reversed The question is, what effect ought to be given to the subsequent expressions, “as now laid clown with an allowance of 45 minutes for variation, south 23 degrees 15 minutes, east 559 perches?” Certainly the surveyor could not change the true position of ¡smith's Forest The first line of The Addition to Goznell’s Chance was to bind on the third line of Smith’s Forest reversed. These expressions are imperative, and cannot be rejected. The plain intention was to make the third line of Smith’s Forest the first line of The Addition ta Goznell’s Chance, to the full extent" of the said third line, which can only be done by uniting and incorporating the first line of The Addition to Goznell’s Chance with the third line of Smith’s Forest reversed, which renders it essentially necessary to ascertain the true location of Smith’s Forest. The mode adopted by the surveyor to ascertain the true location of Smith’s Forest was fanciful, and cannot be considered as any part of the description of the land granted. The legislature has not yet been able to regulate the variation of the compass by any definite or precise rule. The surveyor cannot arbitrarily fix any rule. The subject belongs to the jury alone, who are governed by the circumstances of each case in making an allowance. It must be taken for granted, that the running with an allowance of 45 minutes for variation, did not correspond with the true position of Smith’s Forest; if so the essential part of the description running with, and binding on the third line, must be rejected as inefficient and inoperative. The first line of The Addition to Goznell’s Chance can only be ascertained by reference to the expressions, “running with and binding ora the third line of Smith’s Forest,” and certainly the surveyor could not alter the location of Smith’s Forest by giving it a position according to his notions of what was the proper allowance to be made for the variation of the compass — a subject too great and too important for his decision. Ever since the question respecting the variation of the compass has been agitated, it lias been uniformly and invariably admitted and decided, that it belonged to the province of the jury alone to make the allowance. The court below were of opinion that the expressions, “thence reverse of the third line of Smith’s Forest and bounding thereon,” were binding and imperative, and not controled by the subsequent expressions, which were merely indicative of the opinion of the surveyor as to the true location of Smith’s Forest, and does not differ from the common case of the surveyor’s certifying, that he run with and binding on the line of an elder survey a particular course and distance, which, course and distance do not correspond with the line of said land. Xn such case the court would not hesitate to say, the true construction of the grant was to adhere to the call, and reject the course and distance, although the surveyor has certified he run the course and distance particularly mentioned, as the line of the said elder tract. In what respect does this case differ from the ordinary case of a peremptory or imperative call, and course and distance, which do not correspond? Invariably and uniformly the call has been preferred, and the course and distance rejected. The surveyor certifies, that the beginning of The Addition to Goz-nell’s Chance was “at a stone planted at the end of the third line of Smith’s Forest, and running from thence reverse of the third line of haid land, and bounding thereon (as now laid down with an al« lowance of 4 minutes for variation,) south 23 degrees 15 minutes east 559 perches.”

The course and distance do not correspond with the third line of Smith’s Forest reversed, and must be rejected, because the call is imperativo. Can the reason assigned by the surveyor for run-, ning that course and distance give the course and distance any ad* ditional weight, and entitle it to the preference to a peremptory and unequivocal call? Certainly not. It is no matter what motive or rea. son induced the surveyor to run that course and distance; if it does not agree with tile third line of Smith’s Forest, reversed, it must he rejected. These principles are settled and cannot be shaken. 
      
      
         Chase, Ch. J. withdrew from the bench at the argument and decision of this case; but afterwards furnished the Reporters with the following remarte» upon the opinion delivered by this Court.
     