
    The Bank of the State of South Carolina vs. Simpson Bobo.
    
      Trespass to try Title — New Trial — Location.
    In trespass to try title, two successive verdicts for tbe defendant bad been set aside by tbe Court of Appeals and new trials granted upon a question of location, tbe Court, upon tbe second appeal, saying that upon tbe same evidence a new trial would be granted toties quoties tbe verdict should be for tbe defendant. Upon tbe third trial tbe verdict was again for tbe defendant, and the Court of Appeals refused to grant a new trial, bolding that new and material evidence bad been given which varied the case previously made, and created doubts upon the question of location.
    BEFORE WARDLAW, J., AT SPARTANBURG, FALL TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    “This was a third trial of this case. A report of the first trial may be seen in 11 Bich. 597. The order for new trial, made after the second trial, is in MS., and was made May, 1860.
    “ The plaintiff derived title from Abraham Markley, under a grant made to him of one thousand acres, 3d November, 1788. The defendant was in possession, and had a grant to himself of nine hundred and eighty-seven acres, dated June 25, 1851. The question in the case was, whether the 'grant to Markley included the land which the defendant held.
    “Abraham Markley, residing in Charleston, owned many tracts of land on or near Island creek and Pacelot river, in Spartanburg District. In 1802, James Smith, Sr., surveyor, sent to him a large map, which professed to represent all of these tracts, with explanations and remarks. This map is not now before me; -it is much worn and defaced, and has been by various hands very improperly interlined. It must be in the Court of Appeals, and deserves close attention. '
    “ The land now in question was somehow acquired from Markley by the South Carolina Manufacturing Company, (deed not produced,) and in 1847 a conveyance of it was made by the Sheriff to the Bank, present plaintiff, under a judgment rendered against Markley in 1822, and revived by scire facias against his administrator in 1845.
    "About 1830, and for some time (indefinite) before and afterwards, Simpson Bobo, present defendant, attorney-at-law, was agent to look after the lands of Markley in Spartan-burg District. About 1851, before and afterwards, John McHugh was agent of the Bank in that district.
    “Simpson Bobo in 1845 was, and ever since has been, chief stockholder, president and general agent of the South Carolina Manufacturing Company.
    “An action of trespass to try titles brought by the Bank against the South Carolina Manufacturing Company, came to trial Spring, 1851, when there was a verdict for the plaintiff, which, upon appeal, was confirmed May, 1851. The plat, in that case, made by Gibbs, surveyor, with the concurrence of Harris, surveyor, is not now before me, and I cannot quote exactly the words of the certificate. It must be in the Court of Appeals. Harris testified that after the greatest possible exertion he, Gibbs, and Adam Camp,* surveyor, since deceased, failed to locate the Markley grant then, but that he joined in a certificate to set forth the land in dispute, both parties claiming under Markley, no other grant appearing, and no question of location being made.
    “Soon after the determination of that case, Bobo and McHugh each conceived the notion of obtaining a grant to himself of the land that had been in dispute. Bobo had, under a warrant, a survey made by Harris, May 20, 1851. McHugh sued out a caveat, and had, under warrant to himself personally, a survey made by John Ep,ting, surveyor, Decern-ber 5, 1851, but afterwards complained that Bobo bad anticipated Mm by the grant of June, 1851, before mentioned.
    “ There had never been any actual occupancy of the land, unless it may have been by a railroad of the South Carolina Manufacturing Company; only destructive trespasses by the cutting of timber. This cutting was continued by Stephen Bridges, and others, under the authority of Bobo; and in October, 1857, an action of trespass to try titles, brought by the Bank against Stephen Bridges, came to trial, in which the record of recovery by the Bank against the South Carolina Manufacturing Company was excluded, and the question of location was decided, by the jury in favor of. the defendant, Bridges; an appeal taken was dismissed December, 1857. (See 11 Bich. 87.)
    “ The present suit was then brought, in which three ver: diets for the defendant have been rendered — October, 1858, October, 1859, and now October, 1860.
    “The evidence now rendered, the defendant says, differs from what it was before; the plaintiff says not. Epting and Gibbs say that they are not aware of any difference in the testimony given by them. W. C. Camp, surveyor, says that he has made examinations since the. second trial, and has added to his testimony. I cannot say, never having heard the testimony in full before, and being careful to judge, as I told the jury they were bound to do, only from the evidence now adduced.
    “The grant to Markley, it will be observed, is founded upon a survey made May 11, 1788; it describes one thousand acres by lines and angles, which include an area of one thousand and eight acres; it represents four corners, three trees and one lightwood stake, and on each of the four lines, nearly midway, a station, three hickories and one red-oak, not one of the corners or stations being marked as old, although the stake is called 'Brown’s Lightwood Stake,’ and surveyed boundaries are specified as below mentioned. Three branches of water running from the interior across three of the lines, two of them at apparently the same distance from the corner next to-them respectively, and it calls for lands granted or laid out on every side, of which it is material to notice that, on the southwest line, Abraham MarMey’s land is called for. The general situation of the land is described as on the ridge between Island creek and the head of Thickety.
    “ The map of James Smith, before mentioned, undertakes to connect Markley’s lands. The tract on this map, which the plaintiff says is the one contained in the above grant, seems in the original ink to have been called ‘ one thousand and eight acres,’ without any notice of the difference between the quantity thus set down and the quantity called for by the grant, which notice, the defendant, says, was required by what has been done in reference to -other tracts; in manifestly different ink, but, as I think, by the same hand at another time, is written on this tract, ‘granted May, 1788.’ No station is called for in this tract, nor on any other,tract in the map; no corner tree is called for of this tract, the boundaries on all sides are different fro'm those in the grant; Dunaway for Brown, Abbot for Markley, and none for Hopkins and Old-wright; the waters are wholly different from the representations of the grant.
    “ The defendant contends that the map furnishes no sufficient evidence that Smith ever saw this grant.
    
      “ The plat made by John Epting, surveyor, which accompanies this report, has been marked by small letters at important points, and to that reference must be had for understanding the testimony of the surveyors.
    “All of the surveyors agree that n, d, h, p, represents the tract surveyed or resurveyed by Smith in 1802 ; that there is yet much timber standing upon all of the lines, except h,p, which is mostly cleared, and was much more in 1850, when they first surveyed these lines, and that there never has been found, by any of them, a marked tree of which the mark is older than 1802, except marks at a and o, which Epting alone relies on, and which will be mentioned below.
    
      “John Epting, Surveyor. — Thinks that the true location of the grant is a, b, g, m; both this and Smith’s lines cover the supposed trespasses of the defendant, so that either of them, if the proper location, will serve the plaintiff ' now. He adopts this mainly to avoid repeated crossings on the northwest.and northeast lines of Island creek, a considerable stream, upon which there are mills along these lines, and which is altogether unrepresented by the grant. But he thinks that at a are pointers showing a corner that he takes to be Brown’s, and that at o is a blazed post oak, and at c a blazed black oak, all of which marks he has counted to be of nearly the same age as the grant, if not the very same. To this location he adheres firmly, notwithstanding he feels that it may be considered presumptuous for him to differ from Smith, who he acknowledges must have had lights not now to be enjoyed, and of whose eminent skill all of the surveyors speak favorably, although Harris says his reputation for fairness was not good. Of the greater portion of the southwest and northeast lines, say between'd, g, and n, m, Epting is still more decidedly confident, resting upon the hickory shown by Ezekiel Dobbins, as mentioned below, and upon corners of adjoining lands, granted since the date of Markley’s grant, which were struck in running those lines, and upon their being exact prolongations of existing lines upon the southeast. Of the general situation he is satisfied — ‘ here,’ says he, ‘ is a place for the grant — a place which has been assigned to . it until 1851. The head of Thickety is only a mile to the east, in a mountain, the ridge between Island creek and Thickety is five or six miles long, but no place on it would suit the waters as well as that I have fixed.’ The branch near c he thinks suited the grant pretty well, except that it ran the wrong way, and the one at h would not be far wrong, if it be supposed that McBee, the surveyor for the grant, in laying it down, measured from the wrong end of the northwest line.
    
      “John Gibbs, JUsq., of Union, Surveyor. — Never surveyed the land but once, and that was in March, 1850, after the death of Adam Camp, the surveyor, who had previously been on it with Harris. He now thinks that the true' location of the grant is d, h, p, n, according to Smith’s survey, and I suppose that he meant to be understood that he thought so in 1851; but in argument, it was asserted by the defendant, that he had not said so, and my notes do not show that he did.
    
      “ Says he, ‘ we began at a corner ,n, which some man, I thought John Martin, pointed out, saying — ’ here he was stopped by the defendant, plaintiff’s counsel assenting, as Martin was in Court.
    
      “ The hickory at e was pointed out by Ezekiel Dobbins, an old man, now dead, who owned adjoining land, as a station of the Markley land. It was plainly marked by three chops, and a blaze on each side, but the marks had not gone through the bark, and the age could not be counted. We found no marks older than Smith’s survey.
    " The branch r, I think, comes nearest to corresponding with any delineation of water in the grant. That does pretty well. Old surveyors were sometimes careless about waters.
    
      “Wm. 0. Gamp, Surveyor. — ! am not satisfied with either location — Smith’s or Epting’s; think that if the land lay about there, Smith probably located it properly, but his representation is so far from that of the original grant that I cannot adopt it. Differences pointed out; waters; no marks older than 1802 ; no boundaries called for to be found; none adjoining Markley’s land southwest of this ever heard of; no Oldwright and Hopkins known here; Brown not known, but heard of in another place to the southwest. The hickory probably marked by Smith.
    “ The marks which Epting thinks are pointers at a, I think are not pointers, but only side blazes. The whole lines from n to g and. from d to s are marked with such marks peculiar for an old survey, three chops on the line, and side blazes of trees near the line; but no such marks are found betweqi u and p, or anywhere else on Smith’s lines. These marks have been made with an axe, but Smith’s were all made with a tomahawk.
    “ This tract is on the ridge between Island creek and head waters of Thickety. I know that ridge well; have surveyed the whole of it, (produces plat of eighteen thousand acres;) could find lower down the ridge, toward the southwest, a place which would suit the delineation of waters in the grant better than this, and which moreover would be bounded by Markley’s land and by land which I have heard was once the property of a Brown.
    “The hickory is too far to the south for the grant, if Smith’s resurvey be adopted.
    
      “ I have not located the land elsewhere. To the southwest the country is all cleared and worn out, and marks obliterated.
    
      “Gol. W. W. Harris, Surveyor. — (Has no spectacles and does not look at the papers.) Made repeated attempts to locate the grant in 1850, in company with Adam Camp, but could not be satisfied with Smith’s resurvey — waters all wrong — marks not old enough — lands called for not found. After Camp’s death, went again with Gibbs — saw Smith’s survey, and certified that to be the land in dispute. (See above.) Have sur-; veyed repeatedly since, and am still of opinion that the grant is not located here.
    “ Once surveyed Gibbs’ land that had been Markley’s or adjoining Markley’s, lower down the ridge; was of opinion that there the grant could probably be located, but McHugh said, ' no, that land is all worn out.’
    
      “ On the survey of Gibbs and myself, the Bess land (shown in Epting’s plat) was spoken of as the Brown land; can’t say by whom; but I never saw a paper of Brown land, nor had any evidence to show where it lay. John Martin lived south of Smith’s line. Epting’s southern line runs close to his house.
    
      “Peter Camp, Surveyor. — Have not surveyed this land, but .surveyed for the two brothers, Dobbins, and found the ¡hickory station, called Markley’s; know the country well, ■and don’t believe that any place on the ridge can be found to suit the grant as well as this.
    “All of .the surveyors agreed that trees called for on a line as stations and corners, showed that the line had been actually run.
    “A son-in-law of Ezekiel Dobbins, confirmed by other less certain testimony, showed that Ezekiel Dobbins and William Dobbins came to this State from North Carolina after 1802, probably 1805 or 6.
    “ Various old witnesses showed that for fifty years back this land had been spoken of as the big survey belonging to a man in the low country, and as Markley’s lánd.
    
      “John Martin — 78 years old. — (Manifestly honest, but from his ignorance of plats, and general descriptions of away doton yonder, just above, just below, and the like, his testimony was not very intelligible; appears to me inconsistent; I give it in full from my notes.)
    
      “ I have lived between thirty and forty years on this land, (pointing to Epting’s representation of the Bess land ;) I live two or three hundred yards from Smith’s line, about three-eighths of a mile from where they said the lightwood stake was. The first I ever knew of Markley’s land, James Smith, Jr., came surveying; I showed him my corner, and he said that must be the lightwood stake corner of the Markley land. I afterwards showed the same to Gibbs, and told him that James Smith said it was the corner; I did not claim any of the land surveyed by old Smith as Markley’s. I thought it belonged to the South Carolina Manufacturing Company.
    “I don’t claim under Bess or Brown.
    
      “The Bess land is a part of the Brown land, as I have understood ; the Brown land and Bess land, I understand, are both still beyond the lightwood stake corner.
    “ I never heard of Brown owning the land I live on. I own clear round the corner toward the railroad, (shown in plat.)
    “When I first came from North Carolina, a Brown was living down there below me, where old Mrs. Garret lives; I suppose Bess was before Brown.
    “No part of the land north of me was claimed as Brown’s land, but land on the southeast of. me. I never pointed out any land about the corner as Brown’s; never heard of any other land as Brown’s but that I have said.
    "I was a witness on the former trials.
    “ It seemed to be conceded that Mrs. Garrett was living on the southern part of the Bess grant somewhere. Exactly, where John Martin lives, and whether he lives on the Bess grant, did not appear, nor who James Smith, Jr., was.
    “No witness had ever'heard of Markley land which adjoins any of the lines of this tract, according to either location. No evidence was adduced concerning Oldwright, Hopkins, or Dunaway. Abbott’s land is in the northwest on parts of two lines of this tract, as shown by Epting’s plat. Price’s land is south and east of Abbott’s; both are excluded from Bobo’s grant for nine hundred and eighty-seven acres.
    “No paper concerning Brown’s land was offered, nor any other evidence about it, or the lightwood stake, besides Martin’s testimony, and the rumors spoken of as above by some of the surveyors.
    “I submitted the cáse to the jury, taking great pains to strip it of all adventitious matter, and reduce it to the single question of location. Upon that question I gave full instructions, showing the nature of the question, the opinion of the Court of Appeals decidedly expressed in the case as before presented, and my own opinion upon the case, as now it ap_-peared, still inclining in the same direction. I summed up with care the views taken on the two sides, and solicited a just response to the evidence, direct and presumptive.
    
      “ Notwithstanding what the surveyors said about lines open and lines actually run, I suggested, what seemed to me highly probable, that McBee ran not all the lines, perhaps only one, or part of one, embracing Dobbins’ hickory, or the Brown lightwood stake, and that thus his wide misrepresentations of waters and the absence of his marks may have occurred; and yet a beginning having been obtained, Smith may have afterwards laid out the land, so that according to our decisions the grant would prevail.' McBee represents the land as surrounded on all sides by lánds granted or laid out, and it would be extraordinary if such lands (unless they should have been laid out by McBee cotemporaneously with this tract) should have happened to enclose a vacant tract, that was an exact rectangular parallelogram, which, with a slight mistake of quantity, a surveyor could call one thousand acres. Of this, as of all other matters of fact, I left the jury to judge, after I had given them all the assistance I could.
    “The jury seemed to be composed of plain, honest men. I thought them patient, attentive, unimpassioned, and unprejudiced, as I know I was. After an absence of three hours, they rendered a verdict for the defendant. I believe now, that if I had been of their number, I would have contended for a different verdict; but I cannot say that there was not room for grave doubts. I would have given more force than perhaps the jury did to the long acquiescence in, and distinct acknowledgment of, Markley’s right by the adjoining proprietors, and by the whole neighboring population; and to the presumptions arising from Smith’s survey, and the improbability that this land had remained vacant until 1851. But I could not have denied that these matters might have come from Smith’s survey just as well if he actually had run the wrong land, as if he found the tract that really was granted.
    “ The onus was on the plaintiff; besides the ridge and the fact that Smith did survey the land as Hartley’s, with wbat may be the consequences of that fact, there was nothing certain to show that this land corresponds with the grant, any more than any other parallelogram, of the same size and shape, which. Smith might have run on the ridge in 1802, would now do.
    “ Peeling better satisfied with the verdict than with many that I have seen permitted to stand, and with my concurrence too, I indulge the hope that justice will not be considered to require that the Circuit Court should be again troubled with the case.”
    The plaintiffs appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the location of the Hartley grant, under which plaintiffs claim, was well established, and the verdict should have been for the plaintiffs.
    2. Because the verdict was not only against but without evidence, and is against law, and should therefore be set aside, and a new trial ordered.
    
      Williams, for appellants.
    Bobo, contra.
   The opinion of the Court was delivered by

Inglis, J.

The plaintiff can recover only upon satisfactory proof that the Harkley grant of November 8, 1788, covers the land in dispute. The verdict rendered on each of three successive trials expresses the conviction of the jury that such proof has not been made. This Court, reviewing the evidence adduced on each of the two earlier occasions, considered that, under the rules of law applicable to the subject, the particular location of this grant claimed for the plaintiff was sufficiently well established to entitle him to a recovery. Upon a careful comparison of the evidence upon which the last verdict proceeded with that sp reviewed, important additions are perceived, which, in the opinion of this Court, materially impair the foundations on which the plaintiff’s location has heretofore chiefly rested, and tend to bring the correctness of that location into grave doubt. It now appears that Dobbins, on whose information alone rests the conclusion heretofore drawn in reference to the hickory station on the southwest boundary line, did not come into the neighborhood until some two or three years after the date of the Smith survey; the testimony of Martin throws considerably more doubt on what is called the “ Brown corner,” and the surveyor, W. 0. Camp, does certainly direct attention to facts which, so far as can be seen, seem not to have been adverted to before, probably the result of the examination which he says he has made since the preceding trial. Upon a careful consideration of the whole testimony from which the jury, from whose verdict the present appeal is brought up, have drawn their conclusion, this Court is unable to say, with any such confidence, as would justify an interference, that that conclusion is wrong. The motion for a new trial is dismissed.

Dunktn, C. J., and Wardlaw, A. J., concurred.

Motion dismissed.  