
    HUNT’S LESSEE v. McHENRY AND WILLIAMS.
    County surveyor — private surveys — section lines — evidence.
    By our statute no re-survey, made after the first of June, 1831, except made by the county surveyor or his deputy, can be received as evidence, unless made by mutual agreement in writing, signed by the parties.
    If the plat of survey is rejected, the surveyor will not be permitted to relate orally his doings while surveying.
    Where government land has been run into sections, and patented by the number, the patent covers the land actually surveyed, whether the lines were run straight according to the law or not.
    The question in such cases is, where was the line originally run, not where ought it to have been run?
    Ejectment to settle the boundary between sections nineteen and twenty.
    
      Starr for the plaintiff
    offered a plat of a survey of the line.
    
      King
    
    objected that it was not signed by the parties under the provisions of the statute, or made by the county surveyor.
   Wright, J.

The twelfth section of the act, creating the office of county surveyor and defining his duties, (29 O. L. 401) provides that no re-survey thereafter made by any person, except the county surveyor or his deputy, shall be considered as legal testimony in any court of law or equity in this state, except such surveys are made by mutual consent, in writing, and signed by the parties. This survey was not made by the county surveyor or by his deputy, nor is it signed by the parties. We have no discretion on the subject, but are prohibited from considering such surveys legal evidence. It must be rejected.

Starr

then called the surveyor, who was proceeding to testify that he run the line, etc. but was stopped by the court.

Starr

asked him if a straight line were run from one corner to the other, whether it would fall so as to include any of the defendants’ possessions.

King

objected, the line was actually run by the government, and the inquiry is, where that line is.

Starr.

The line was actually run by the government, but the law required the line to be run straight.

Starr

then consented to a verdict for the defendants.

Wright, J.

If this land was originally surveyed you can prove where the lines of such survey are, and how they affect the possession of the parties, but you cannot prove the survey orally, which reduced to writing, we have just rejected.

The witness then said he found the corners of the section, but no line.

Wright, J.

Is it conceded that the government did in fact run the line from these corners ?

Wright, J.

If the line was actually run, before the patent, the patent is for the section surveyed. Where was the line run 1 is the question, not where it ought to have run. If the witness can tell where the line that was run is, he can do so; but if his knowledge depend upon a re-survey and calculations, he cannot testify to that. Whether the line originally run was in accordance with the law or not, is a question between the government and its officer. The section actually run out is patented by its number — nothing else is patented — there are no calls in the patent for corners or lines.  