
    *Lessee of Arthur Wyckoff v. John Stephenson.
    The survey of an entry in the Virginia military district limits the grant to the calls in the survey.
    Where there is a discrepancy in the calls, the line actually run is to be found by having recourse to the, more certain, fixed, and natural objects called for in the boundary.
    This is an action of ejectment, from Brown county.
    On the trial, on the circuit, the plaintiff claimed title to41J acres of land, being entry No. 10,760, dated August 15, 1821, on part of a military warrant, No. 6,439, on the waters of the west fork of Eagle creek, beginning at two sugar trees on the west bank of said creek, upper corner on the creek to Philip Slaughter’s survey, No. 588 ; thence with Slaughter’s upper line south, 69 degrees west, to the line of Thomas Fox’s survey, No. 700 ; thence with Fox’s line north to the southwest corner of John Wilson’s survey, No. 1,820; thence with Wilson’s lower line to the place of beginning. March 23, 1822, this entry was surveyed, pursuant to its calls, and on October 9, 1823, the patent issued accordingly to the plaintiff, who made the entry.
    The defendant claimed title to the same land, under John Wilson, who, on February 21, 1797, entered 500 acres of land on four military warrants, on the west side of Eagle creek; beginning at the upper corner of Slaughter’s survey, thence with his line north, 67 degrees west, to the line of Thomas Fox’s survey; thence with Fox’s line, and from the beginning up the creek, for quantity. This entry was surveyed May 6, 1788, and was claimed by the defendant to cover the same tract of land sought to be recovered by the plaintiff in this action.
    On the trial of the cause, the plaintiff offered testimony to prove that the survey of Wilson, under which the defendant ^claimed, was made by Nathaniel Beasley, a brother of John Beasley, deputy surveyor of Richard Anderson, who returned the survey to the proper office; that the surveyor, in running Slaughter’s upper line, did not in fact run upon the same, but diverged therefrom, leaving an unappropriated tract between it and Slaughter’s lino, being the land now in controversy, and that the line run and corners established by him, were defined by metes and bounds, and artificial monuments, which still exist and are well known.
    He further offered testimony to prove that the lands in Wilson’s survey were cleared up to the line surveyed.by said Beasley, and no farther, for the reason that the persons clearing that part of the survey, believed that line to be the boundary of the same; - that they built their fences on said line; that Wilson disclaimed all right to the land below it; that it was generally reputed-mid believed in the neighborhood to be the line, and was never questioned by the defendant till about five or six years before the commencement of thiesuit; and also, that the land in conLroversjq lying between this line and Slaughter’s line, from the earliest settlement of the country, up to the time that the plaintiff caused the same to be patented and surveyed, was generally called in the neighborhood, vacant land.
    But the court instructed the jury that, as Wilson’s calls, in his entry and survey, were for Slaughter’s line, he had the land up to that line, though in fact Beasley, the surveyor, may have run another line as Wilson’s line ; and, under this instruction, the jury returned a verdict for the defendant.
    The plaintiff moved for a new trial, for misdirection of the court in thus charging the jury, which motion was reserved for decision hero.
    John Jolote, for plaintiff: .
    The question here is, what lands are de facto embraced by Wilson’s patent. That he could have extended his line to Slaughter’s line is not disputed ; but did he in fact do so ? If *be did not, then I hold that the line and corners actually marked, are his boundaries ; not those that he might have made. This case must be carefully distinguished from that where there is no line or corners marked, and the line or corners of a subsequent survey called for. In such case, I do not dispute but that the line called for is the boundary of the survey.
    The first error is, that the instructions of the court took the case virtually from the jury; the whole matter was decided by the court; it left nothing for the jury. There was no dispute between the parties as to Slaughter’s line, nor that Wilson called for that line. This was making the whole controversy a question of law. See Dana, 1.
    In Avery’s Lessees v. Baum’s Heirs, by Judges Lane and Wright, Wright, 576, the jury was instructed that “the lines actually run in the original survey will govern you, if your proof ascertains where those linos are. The first and safest reliance is the actual line as originally run.”
    
    In Aylshiro’s Lessees v. Hulse, Wright (by Judges Hitchcock and Wright, see page 162), the court said, “ If disputes arise after the conveyance, where the land lies, the inquiry is, where the lines were run, and the objects called for in the deed fixed at the survey.” S. C., 5 Ohio, 534.
    In Hunt’s Lessees v. McHenry and Williams, Wright, 599, decided by Judges Lane and Wright, Judge Wright said, “Where was the line run, is the question ; not where it ought to have run. Whether the line originally run was in accordance with the law or not, is a question between the government and its offlcei’s.”
    In Bayley’s Lessees v. Rupert, Wright, 634 (by Judges Wood and Wright), Judge Wright said, “ The real question is then, where was the line, which is returned as the boundary between these two sections, run on the ground, not where it should have been run. If the line run and returned, is ever so erroneous, it must govern, because the law so provides ; we have no power to correct it.”
    In Preston’s Heirs v. Bowman, 6 Wheat. 580, the Supreme *Court of the United States (by Judge Story) says, “It may be laid down as a universal rule, that course and distance must yield to natural and ascertained objects.”
    In Sumpter v. Bray, 2 Bay, 437, the Supreme Court of South Carolina decided, “Where the original marked trees and corners of natural boundaries can bo found, they ought to govern, on a survey.”
    In 2 Dana, 3, the Court of Appeals of Kentucky say, “ The followingpropositions are inconfrovertibly true, ‘upon principle, reason and authority.’ When the line was actually run, it must bo, as run, the true boundary on page 5, “ policy and law certainly require that the patent calls should define the boundary, unless there be strong and satisfactory evidence showing that an actual survey was made varying from those calls.”
    
    The case of Frost v. Spalding, 19 Pick. 455, is exactly in point'. There the grantor described the land as bounded by land set off to S. F., for her dower. After the execution of the deed, the parties went upon the ground and pointed out monuments as the termini of this line, which were short of the line, leaving a gore (the land in dispute) between the monuments and the line named in thedoed.
    ' The court decided that the lino from one monument to the other was the boundary.
    The court said, “If the boundaries had been referred to in the deed, there could have been no question that the extent of the grant would be limited by those bounds, although the true dividing line between the Frost’s and Moor’s lots had been further to the northward.”
    “ Where a lot is bounded, in a conveyance, by monuments on a supposed line of an adjoining lot, and the monuments do not in fact correspond with the true dividing line, the monuments must govern, as the most certain indication of the intent of the parties. And if the monuments should extend beyond the dividing lino, upon an estate not belonging to the grantor, ho would be liable on his warranty.”
    *In Bates v. Mercer, 4 J. J. Marsh. 361, the survey of Madison called for Mercer’s line, as one .of his boundaries; but the surveyor, in running off the land, mistook the place where Mercer’s line was, and left a large intermediate tract of land which was the subject in controversy. The court, on page 361, after an argument on a petition for rehearing, said, “ If Mercer had been ton miles off, must Madison bo 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 the court to he Mercer’s true line, is only because there teas an evident mistake in the opinion as to the location of Mer- ' cer’s line.
    
    “ If Mercer’s line, from his beginning to S. A., bad-been marked and actually run, then still Madison might not havo a right to make it his boundary, if it clearly appeared that he was mistaken in calling for it.”
    “It is a settled rule that a conveyance is to be construed in reference to its distinct and visible locative calls, as marked or appearing upon the land, in preference to quantity, course, distance, map, or anything else.” Van Wyck v. Wright, 18 Wend. 157.
    Artificial monuments or bound'ai’ies, and all visible and ascertained objects, shall control distances in the description of parcels in a deed. Jackson v. Ives, 9 Cow. 661; Doe v. Thompson, 5 Cow. 371; Jackson v. Frost, 5 Cow. 346; Jackson v. Camp, 1 Cow. 605.
    In the Lessees of Nelson v. Hall et al., 1 McLean, 519, Judge McLean instructed the jury that, “If the original marked trees ^or objects called for, shall be proved, the jury will be governed by them, though they may vary materially from the courses .and distances called for.”
    See also Tyler v. Hammond, 11 Pick. 193; Baxter v. Evett’s Lessee; 7 Mon. 333.
    I do not think it necessary to refer to further authorities *upon this question. The general rule that the lines and corner actually marked are the boundaries of the deed or patent, is not, I suppose, disputed by the counsel for the defendant. They insist only that this case is an exception to that rule, and that Nash v. Atherton, 10 Ohio, 164, controls this case. The casos I submit are very different. The question here was (in Judge Hitchcock’s language, 172, 173), “ Whether, when an individual, in his patent or his deed, is bounded by the lands of another, 1ns patent or his deed can be so construed as to include those lands.
    Here the question is, “ Whether, when he actually makes a corner and marks a line short of the line to which he has a right to go, he can, after an acquiescence in that line until another person obtained a patent for the intermediate land, abandon the line he has made, and claim to the.line he might have made, when making his survey. His^acquiescence alone prevents him from doing so. See Jackson, ex dem. of Suffern, v. McConnell, 12 Wend. 421. Wilson, by the evidence, disclaimed all right to the land between the corner at C, and the line of Slaughter’s survey.
    I know of but two exceptions to the general rule in question: - 1. Where a water-course is called for as a boundary, and the trees are marked upon the bank for corners; here, from necessity, the marked trees must be off the natural line. 2. The rule in Nash and Atherton. And, as this case does not come within the exceptions, it is governed by the general rule.
    Nash and Atherton is in our favor. That decides that a man is estopped, by the line ho makes.
    In Nash and Atherton, the court say that they do not intend to disturb the established principles on the question of boundary. We have already shown what those principles are, and they settle, as wo respectfully submit, the present case.
    Hamer & Johnston, for defendant:
    Contended that the calls in the entry, survey, and patent, for Slaughter’s line, could not have been rejected so as to allow the *plaintiff to locate between that line and the actual survey; but that the defendant would hold to Slaughter’s line, notwithstanding the mistake of the surveyor in running off the entry. They relied upon Nash v. Atherton, as settling the law of the case.
    J. H. Thompson replied, and referred the court to the case of Preston’s Heirs v. Bowman et al., 2 Bibb, 493, in which it was decided, “that when the lines and corners of a survey are found, they must control, though they may differ from the patent calls, and that tho locator can not go beyond his marked line.”
   Birchard, J.

In this caso, the call of the patent under which the defendant claims, is in these words : Beginning at two sugar-trees and a buckeye, upper corner to Philip Slaughter’s survey, No. ,588, running with his line north 66 degrees west 290 poles, to a lynn, sugar-tree and ash, in the line of said Slaughter’s survey.” The proof tended to show that the line, as run by the surveyor on, tho ground, and thus described, did not in point of fact correspond with Slaughter’s upper line, but diverged therefrom, leaving an unappropriated vacancy between it and the line of Slaughter of forty-one acres, which the plaintiff’s title covers. Tho fact to be tried by the jury, was a question of boundary purely, to wit, Where was Wilson’s lower line actually run ? Under the charge of the court, the jury were relieved from the inquiry touching this (act, and wore informed that, as the calls in Wilson’s entry and survey were for Slaughter’s line, he had the land up to that lino, although tho surveyed line was at a different place. In this there was undoubted error. The line actually run upon the ground, limits the rights of the patentee. He can not, in a case like this, claim title to lands without his boundary. His survey identifies tho land claimed by him. It defined and controlled his entry which was merged in the survey, and which last is alone embraced by tho patent. It is a well-settled rule, that a line actually marked and oalling for fixed natural objects, must be *controlled by those objects, and that the less certain means of ascertaining its locality, are to yield to the more certain. Thus, courso and distance must yield to artificial/fixed objects, and they again to permanent or natural objects. The permanent natural objects, in this boundary, are the lynn, sugar-tree, and ash, to which Beasly run. The fact that he misdescribed them, as standing in Slaughter’s line, so long as they are to be found, can not affect the right by transferring the line from them over to his line, and it is supposed would never have been thought capable of affecting such an object, but for a misconception of the case of Nash and Atherton, 10 Ohio, 163. That case simply decides that “a conveyance-of land purporting to be bounded on other lands, can not be so conotrued as to embrace the lands on which it is bounded,” and was intended to decide nothing more. There is no doubt of the legal soundness of that proposition. Possibly, had I been concerned in that decision, I might have questioned its entire applicability of the principles to the facts of that case, at least till otherwise convinced by the arguments of my brethren. Be that as. it may, there is a difference between extending a location, so as to make it cover land previously appropriated, and limiting it by actual survey, so as to create a vacancy. New trial granted.  