
    Leicester Walker v. Lessee of Walker Devlin.
    A statement in the bill of exceptions, that testimony was introduced tending to show, etc., is insufficient to advise a court of error, whether the verdict was manifestly against the weight of evidence, so as to entitle the party aggrieved by the verdict to a new trial.
    A refusal to charge as asked, in an action of ejectment, upon a hypothetical case, supposing great uncertainty in the location of some point in the boundary of the premises or the like, when no such uncertainty exists in the testimony, is not error.
    Where an instruction, proper in itself, is asked as part of an instruction prayed for on such hypothetical case, for which no warrant appears in the testimony, the refusal of the court to give it is not cause tor reversing the judgment. When an instruction is prayed for as an entirety, part of which is proper and part improper, it is generally better to give the good and refuse .the bad but it is not error to decline doing so. For, being asked as an entire thing, it may he treated as an entirety, and refused, if a portion of it is inadmissible. French v. Millard, ante, 44.
    Proprietors of adjacent lands may, by verbal agreement and occupancy, fix a disputed and uncertain boundary; but a bare trespasser, having no title whatever, can not by such agreement become the owner of his neighbor’s land; nor can there be a plain and wide departure from the boundary of a natural object, like a marsh, under the pretense oí fixing the boundary.
    The service of a notice to take depositions, is insufficient if it be merely left at the office of the adversary’s attorney. »
    A judgment will not be reversed because the court below refused to compel the attorney to testify when his exceptions, for want of notice, were made to *the depositions—the bill of exceptions showing no rule of court on the subject, and not disclosing that the party asking for the testimony expected or offered to prove that the exceptions were not taken at the proper time.
    Error to the district court of Erie county.
    Tbe judgment sought to be reversed affirmed a judgment of the court of common pleas of Erie county, in an action of ejectment brought by the present defendant against the present plaintiff.
    There were three trials of the cause in the court of common pleas, two juries disagreeing.
    On the third trial, before a struck jury, the plaintiff offered in evidence a map of the fourth section of Huron township, which is represented by the following:
    Section 4 oe Huron Township 6, Range 22, containing 3,566.
    
      
    
    The plaintiff gave evidence tending to show that the north line of the map was not a surveyed line; that the boundary might be marsh or water; that this map was taken from an original survey made as early as 1820; and that lot 34 was the west lot in said map. By the map there are 100 acres in lot 34, and 112 acres in lot 33. The plaintiff next introduced a copy of classification and description of said section 4, as follows:
    
      ^Classification No. 4.
    
    
      
    
    
      “ Section No. 4, in township No. 6, in the 2d range, was drawn-according to the mode of partition adopted by the directors, and is-now aparted to and among the owners and proprietors of the original rights and losses, which constituted classification No. 4, here-recorded, and is situate next west of section No. 3, and is adjoining the same. Bounded on the south by the south line of the town, east on section No. 3, north on the shore of the lake, and west on the west side of said town No. 6, so that said section No. 4 shall, contain one equal fourth part of said township, and that this section No. 4, shall be construed so as to include the whole of the-sand-bar or beach lying easterly of the outlet of Sandusky Bay,, but not to extend east of the east line of said section.”
    This classification is duly certified by the recorder of Huron county, as truly copied from the classification records of said county.
    The plaintiff next introduced a deed from William Winthrop to-Stephen Russell, with covenants of general warranty, dated May 3, 1820, describing the land conveyed as follows :
    “All that certain lot, piece, or parcel of land, situate, lying, 'and being in the town of Huron, in the county of Huron, and State of Ohio aforesaid, known and distinguished by lot No. 34, in section-4 of said town, butted and bounded *as follows : Beginning at the northeast corner of lot No. 33 at' a stake in a marsh, near a. creek, and running thence south 87 degrees 15 west 33 chains and. 60 links to the northwest corner thereof, at a stake in the west bounds of section No. 4, north 62 degrees east 23 links of a hick<ory ten inches in diameter ; thence along the same, north 5 degrees 40 minutes west 30 chains to the edge of a marsh adjoining Lake Erie; thence along the same easterly to a stake in the northwest corner of lot No. 32; and thence along the west line of the same, south 5 degrees 40 minutes east 30 chains to the place of beginning, containing one hundred acres and sixty-eight-hundredths, be 'the same more or less.”
    The descent from Stephen B. to Linus and Reuben Russell being •admitted, the plaintiff introduced a deed from Reuben 3L Russell to Linus, dated September 30, 1844, for lands described as follows: “ Situate in the township of Huron, being township No. 6, in the 22d range of townships in the Connecticut Western Reserve, in the 'State of Ohio, and which is in the county of Erie, and is known by lots No. 33 and 34, and is bounded as follows: being lots 33 and -34 in said township of Huron, bounded south by lot 28, west by west line of said township, north by marsh, and east by lot No. 32, in said section.”
    The next item of plaintiff’s testimony was the deposition of Linus Russell; the defendant’s objection to it being overruled, and exception taken. The witness testified that, as near as he could remember, his father settled on lot 33 in August, 1815, and paid for lot 34 in May, 1820. Witness was not sure “ but that he had an article of it before,” but was sure that he took possession at that time. “About the time of the purchase of lot 34,” says the deponent, “ Mr. Winthrop and his agent, Mr. Wright, were on the ground; they took the north and south line on the west of the lot, and followed it down to a point where there was a stake; father asked Mr. Winthrop if that was the corner; he said no—that he owned clear •down to the marsh; we took the same line and followed it down until we came to the edge of the marsh; *we stopped on the •edge of the marsh; we could not go any further on account of the water. I did not see any stake there, but Winthrop stuck down a stick, and said, ‘Your corner is somewhere near here.’ That stake remained, and was kept up there for a number of years. I think I have seen it there as late as 1844 or 1845.”
    The witness further testified, that the land taken into possession by Walker lies south and east of this part, and that if a line were run easterly, along the edge of the marsh from this part, the land in Walker’s possession would lie south. The witness deposes that when his father took possession of lot 34, in 1820, that possession “went as far north as the stake, when the water would let us go there. Sometimes the water would let us go beyond the stake, and, .at others, not to it. Some of that which Walker took possession of we mowed; on other portions of that taken possession of by Walker, we raised corn, wheat, and potatoes. The possession continued up to 1845 or 1846.” The post before mentioned proved to be the northeast corner of Mr. Winters’ lot. The witness refers to a paper marked A, as releasing him, but the exhibit is not shown in the transcript of the record. The record does not show any part of the-deposition as marked, although the bill of exceptions refers to a “ marked” part of the deposition as that admitted in evidence.
    The plaintiff then introduced testimony tending to show that the fence, built by Walker as his south boundary, and claimed by him to be the north boundary of lot 34, was 60 or 70 rods on the line-of the township from the edge of the marsh; that timber grew within a few rods of the marsh edge, extending west from the west line of the section some distance; that there was, in 1832, a stake standing near the edge of the marsh, on the west line of said lot; and that Russell had occupied up to that stake, claiming it as his north boundary. The plaintiff further gave evidence tending to show that the water in the lake in 1820 was lower than at anytime since; that it was higher at the time of the trial than ever before; and that north of the fence built by Walker, *there was hard land,, which had been used for meadow and timber-land, and had been used, by Russell for farming purposes; and that a line drawn from said, stake, claimed by plaintiff as his northwest corner, eastwardly, along the edge of the marsh, would leave Walker’s possession south of the line. The lessor of the plaintiff claimed under a deed from Linus Russell, dated April 9, 1849..
    The defendant, having offered in evidence a tax deed for land “ lying over one mile from the land in controversy, in a northerly direction on Cedar Point,” offered evidence tending to showthat when he entered into possession of the land in controversy in the year 1846 or 1847, an arrangement was made between him and Linus Russell, who was at that time in possession of lot (34) as to what should be the boundary line between them. And that said boundary line was fixed about ten feet south of what is now the line of Walker’s fence; that he had built said fence; that the defendant had ditched land north of said fence, and had built a fence on the township line from the point which he claimed as the northwest corner of lot 34, down near to the edge of the marsh. He further offered testimony tending to show that there was a brush-fence a few feet south of where Walker’s fence now is, running east and west across lot 34, and that Stephen B. Linus and Reuben Russell, while in possession of lot 34, had spoken of it as the northern boundary thereof. lie further gave testimony tending to show that the southwest corner of lot 34 was referred to by a call in the field-minutes; that the southeast corner was fixed by a stake; that the northeast corner was fixed by a stake, standing in plumb-book as formerly pointed out by Linus Russell, while in possession, but which stake is now gone; that upon said lot being surveyed, and assuming Walker’s fence as the northern boundary thereof, that the quality of land, and courses, and distances, would correspond with those given in Winthrop’s deed, if metes and bounds were disregarded, the east line being 30 chains, the south line being 33 chains and 60 links; but that in running from the southeast *corner of lot 34, north on the line of the township, the edge of the marsh is not reached, but the land is hard and dry. The end of the thirty chains corresponds with the intersection of Walker’s fence with the.township line; and from that point north on the township line, it is necessary to run twenty-one chains further before arriving at the edge of the marsh. Defendant further offered evidence tending to show that the edge of the marsh varied in different stages of the water, the dry land running into the marsh by insensible gradations; and that in a dry time there are nearly fifty acres of hard land, north of Walker’s said fence between there and the marsh, and in a wet time not so much.
    The defendant offered other testimony in the shape of maps copied from books in the recorder’s office, which need not be given in this report, the bill of exceptions not professing to give all the testimony, and that here referred to being merely illustrative of what has already been stated.
    The deposition of Samuel Campbell being offered in evidence, was objected to by the plaintiff, for want of notice. The testimony relating to this matter is stated in the bill of exceptions as follows: Defendant then proved that a copy of the notice had been served on Mr. Root, and had been left in writing at the office of Mr. Reber. Mr. Root then testified that -he had assisted Mr. Reber on the trial of this cause, at another time, and was now assisting him at this trial, but was not an attorney of record and had never been employed by Mr. Devlin, the plaintiff, nor had charge of the case, and had no control of Mr. Devlin’s papers in this suit; that he told Mr. Ooodwin, attorney for defendant, when he served the notice on him, that he did not believe it was good service, and that he was only an assistant attorney, assisting Mr. Eeber; admitted that he had put a motion upon the motion-docket in this cause, and signed it Eoot and Eeber, at the request of Mr. Eeber (Mr. Eeber was absent from home that day, but was at home when the deposition was taken), and also that Mr. Eeber had served upon defendant’s counsel the notice for striking jury, which is hereto attached, ^marked (P). The plaintiff then offered evidence tending to show that the exceptions taken by plaintiff to said deposition, were indorsed on the same at the time they were opened, and soon after said deposition was taken. The defendant then called upon Mr. Eeber to swear as to the ,time when he had placed the exceptions upon the deposition, but Mr. Eeber refused to swear. The defendant then called upon the court to compel him to swear, and the court refused. The court sustained the objections to said deposition, to which rulings of the court in refusing to. compel Mr. Eeber to be sworn, and in sustaining the objections to said deposition, the defendant excepted.
    The defendant’s counsel asked the court to charge as follows:
    “We ask the court to charge the jury: 1. That, as a general rule, monuments called for in a deed will control the courses and distances called for. This rule, however, is subject to exceptions, and if the jury find from the evidence in the case, that the edge of the marsh called for in the deed from Winthrop to Eussell, either by reason of there being several marshes on the line called for, or, from the fact, if the jury find such to be the fact, that the land passes into the marsh by such insensible gradations that it is extremely difficult to ascertain where the edge of the marsh is; if, from these reasons or any other, the jury find that the edge of the marsh called for is uncertain and less to bo relied upon than the courses, and distances, and quantity called for, then the z’easozz of the general rule first mentioned ceases, and the courses and distazzees called for must govern. Or, 2. That if the jury find that the courses azzd distazzees called for would give the precise qzzaiztity of land called for in the deed from Winthrop to Stephen Eussell; and if the jury fiizd that the edge of the marsh mentioned in said deed, is from azzy reason uncertain and less to be relied upon than ■the courses, and distances, and quantity called for, then they must .give effect to the courses and distances, and disregard the call -for ■the marsh; for the paramount rule is that the least certain -call must yield to those which are more certain.
    *“In case the court refuse to charge as above, and hold that under the calls of Stephen Bussell's deed, lot 34 extends to the edge of the marsh, then we ask the court to charge : 1. That under the calls of this deed, no part of the marsh passed to Stephen Bussell; that the cal! “ to the edge of the marsh,” thence eastwardly, “ along the edge of the marsh,” is exclusive of the marsh,; that it is for the jury in this case to say where the edge of the marsh is, and that the plaintiff in this case is not entitled to recover any portion of the marsh, or any land lying north of the edge of the marsh. 2.- That if the jury find, in tracing the line northwardly from the southwest corner of lot No. 34, that there ;are several lines which might properly be denominated “ the edge of the marsh,” it is for them to find which of those lines is the one called for in the deed, and that in ascertaining which of said lines was intended, it will be proper for the jury to take into consideration the quantity, the courses, and the distances called for, and for the same purpose, it will be proper for the jury in this connection to take into consideration the admissions of the Bussells, while they were in possession of lot 34, as to where the north line ■of said lot was. That the marsh lying north of lot 34 is susceptible of ownership, and of being possessed; and if the jury find from -the testimony that the defendant was in possession of, and claimed title to-, the marsh, or of any land lying north of the edge of the marsh, and adjoining the same, and if that line, “ the edge of the marsh,” was in any degree uncertain, or crooked, it was competent for the defendant, and the then owner of lot 34, to straighten that line, and make it certain, by parol agreement; and if they find that such an agreement was -made, and the parties subsequently occupied up to such agreed line, such agreement is binding upon the parties, and neither is at liberty to repudiate it.”
    The court, refusing to charge in this language, instructed the jury as follows:
    The real land in controversy lies between the Walker fence and the edge of the marsh adjoining Lake Erie. The ^plaintiff must recover upon the strength of his own title, and not upon the weakness of the defendant’s. The plaintiff introduces his-deeds, and claims that they establish his right to recover this land in controversy, down to the “ edge of the marsh adjoining Lake Erie.” It is the duty of the court to put a construction upon these deeds, and by that construction you will be governed. It is the duty of the court to decide what calls, in the deed control it. And it is the duty of the jury to ascertain and locate those calls of the deeds. It is admitted that William Winthrop was the original owner of this land. On the 3d May, 1820, he deeded to Stephen Russell. The legal effect of this deed was to convey to Russell the land in controvers3r to the edge of the marsh adjoining Lake Erie, as it was at that time. On the death of Stephen Russell, the same title vested in his sons, Linus and Reuben Russell. Reuben and Linus divided the land north and south between them. Linus took the west half, and Reuben the east; and each one’s share extended on the north to the edge of the marsh, as it was in 1820. Linus Russell conveyed his half (the west half) to Walter Levlin, the lessor of the plaintiff in this case, the same title that he held ; and the northern boundai’y of the plaintiff is the edge of the marsh adjoining Lake Erie, as it was in 1820, at the time Winthrop conveyed to Bussell. And the plaintiff now owns to the edge of the marsh, unless something has taken place, by which he or the Russells, from whom he derives title, has done, or suffered to be done, some act by which this northern boundary has been changed. It is claimed by the defendant that he has a tax title to his land up to the Walker fence, as it is called. To determine the validity and extent of the tax title, we must look and see what lands were sold for taxes; the tax certificate describes the land sold as a “ part of Cedar Point.” I therefore charge the jury that the tax deed gives the defendant no title whatever to any land south of the edge of the marsh. It is also claimed by the defendant, that he and Russell agreed upon the boundary line, and fixed it where Walker’s fence now is, or near that point, as the true boundary, and that the parties are concluded by that lino. The principle, *that two adjoining owners of land may verbally agree upon the boundary line, when it is in dispute between them, is correct. But the boundary line in this case, as called for in the title deed, is the edge of the marsh. If they agreed verbally upon the line some distance south of that, it is not binding and is of no validity, especially where Walker had no title south of the edge of the marsh; that Walker must have had some interest in the land, to make such an agreement binding. The jury will find in their verdict: 1. Where is the north line of lot 34, or edge of the marsh, as it was in 1820 ? 2. Having fixed the north line of lot 34, or edge of the marsh, if the-defendant claims any land south of that line, your verdict will be-for the plaintiff. The plaintiff is not entitled to any land north of the edge of the marsh. The defendant is entitled to none south of it. In locating the edge of the marsh, you will bo authorized to take into consideration the testimony of Russell, in reference to-the stakes stuck by Winthrop. If Walker and the Russells agreed upon where the edge of the marsh was, and stationed or fenced it. out, you will be authorized to take it into consideration.
    The verdict of the jury was as follows :
    We, the undersigned, jurors in the case of John Doe, ex dem. Walter Devlin v. Richard Roe, Lester Walker, tenant, do find for-the plaintiff—and define the west line of lot No. 34, as extending forty-six chains north from the northwest corner of lot No. 33, to the edge of the marsh adjoining Lake Erie, as it existed in 1820, thence eastwardly along the edge of the said marsh, to the northwest corner of lot No. 32.
    The defendant moved for a new trial; and his motion being overruled, and judgment entered on the verdict, he sued out of the district court a writ of error, assigning as errors: 1. That the court admitted Russell’s deposition; 2. That Campbell’s deposition was rejected; 3. That George Reber, Esq., was not compelled to testify to the time of excepting to the deposition of Campbell; 4. That the charge of the jury was erroneous; 5. That the verdict was manifestly *against evidence; 6. That the motion for new trial was overruled. The seventh was the general assignment
    
      Goodwin & Wildman, Stone & Patrick, and JB. B. Warden, for-plaintiff in error.
    
      Geo. Beber, for defendant in error.
   Thurman, J.

We are not advised, by the record or the argument of counsel, of the ground of objection to the deposition of Linus-Russell. He was a competent witness, under the provisions of the “ act to improve the law of evidence ” (2 Curwen, 1522), there being-no proof that the suit was prosecuted for his immediate benefit. As to his testimony, it was clearly competent, for surely it can not be doubted that a pointing out of boundaries by vendor to vendee,, .at the time of sale may be proved. It is res gesta, and where the proof does not contradict the written contract, there is no objection 'to it.

Nor do we perceive any error in the rejection of Campbell’s deposition. The objection to it was want of notice. The service of notice was by a copy delivered to Mr. Root, who was not the plaintiff’s attorney of record, and who informed the defendant’s attorney -of that fact at the time of' service, and told him he did not believe 'the service was good; and by another copy left at the office of Mr. Reber, who was the attorney of record. The statute, then in force, required notice to “be served on the adverse party, his agent or attorney of record, or left at his usual place of abode.” The final construction, in the Supreme Court, after some conflicting decisions, was that the word “ his,” in the last clause of this sentence, referred to the antecedent word “ party ” only, and not to the word “ agent ” -or “attorney,” and that, consequently, service on an agent, or attorney, must be personal. We find no fault with this construction, but •even had its opposite prevailed, the plaintiff in error would not be benefited, for, upon no construction, could leaving a notice at an attorney’s office merely, be good service. *As to the refusal of the court to compel Mr. Reber to swear to the time when the ex•ceptions to the depositions were filed, all that need to be said is, that the record does not show that the fact was at all material. It ■contains no rule of the court as to the time of filing exceptions, nor •does it even state that Mr. Reber was called to prove that they were taken at an improper time.

One of the assignments of error is, that the verdict is manifestly .against the evidence in the caso. We can not say so, for the evidence is not all before us. A part of it is set forth in the bill of exceptions, and it is stated that other testimony was given “tending” to prove certain facts, and counter-testimony was given “tending” to rebut this proof, but what the testimony itself was, does not appear.

Nor does the bill of exceptions profess to state all the evidence, •or even all the facts, that it tended to prove. We can not, there! fore, say that the jury erred. If we were to judge from what does .appear in the bill, we should say the verdict was right.

The only remaining matters for consideration are the failure of the court to give the instructions to the jury prayed for by the defendant below, and the charge actually given. The court was asked to instruct the jury that, in either of certain supposed cases, they should disregard the call for the “ marsh,” in the deed from Winthrop to Bussell, and be governed by course and distance. It is - unnecessary for us to decide whether the instructions thus prayed for are, or are not, correct upon their face, for the record shows no' evidence upon which to found them. So far as can bo seen, they were mere abstractions. They suppose a case of great uncertainty, as to the location of the marsh, but no uncertainty appears in the testimony; at least, nothing that would even tend to warrant a disregard of the call for the marsh. The evidence on each side, and that for the plaintiff in error as strongly as that for his adversary, went to show that the marsh was almost a quarter of a mile north of the southern line of Walker’s possession. According to his own testimony, *his southern line is twenty-one chains, or eighty-four rods, south of the marsh. The jury made the dif- • ference somewhat less. Their finding is more favorable to him than. was his own evidence.

Perhaps there would have been no legal objection to charging the jury that, in locating the marsh, they might consider, as circumstances, the quantity, courses, and distances' called for in the deed;. and had such an instruction been asked, unconnected with objectionable matter, it is probable it would have been given. But it was. asked in connection with a hypothetical case, for which no warrant appears in the testimony, and we can not, therefore, say there was error in omitting to give it. When an instruction is prayed for as • an entirety, part of which is proper and part improper, it is generally better to give the good, and refuse the bad only; but it is not. error to decline doing so. For, being asked as an entire thing, it may be treated as an entirety, and refused, if a portion of it is inadmissible. French v. Millard, ante, 44.

But had there been no such ill-connection, it is difficult to see how • the plaintiff in error would have been prejudiced by a neglect to give the charge, as there was not a tittle of testimony, so far as the record shows, tending to prove that the distance called for in the deed reaches the marsh. The whole testimony tended to prove directly the reverse.

In connection with this same hypothetical case, the court was asked to instruct the jury to take into consideration the admissions of the Bussells. Of course, what I have before said applies to this branch of the instruction; and there is another fatal objection to it. .as tbe case is presented to us. It assumes that tbe Russells made .admissions. But it was not for tbe court to assume tbat, for aught tbat appears in tbe record. True, testimony was given tending to prove such admissions, but, on tbe other band, rebutting testimony was given, and also testimony to impeach tbe character for truth ■of tbe witnesses.

There are other parts of tbe instructions to which I need not allude, as they were substantially given by tbe court.

*As to the charge itself, we see nothing- in it for which the judgment should be reversed upon the testimony. So far as it appears in the bill of exceptions, there can not be a doubt that lot No. 34 extended to the marsh, or that the proper construction was .given to the Winthrop deed. To the west half of this land, covered by this deed, the plaintiff below deduced a clear title. He was therefore entitled to recover, unless barred by the alleged agreement between Russell and Walker. That proprietors of adjacent land may, by verbal agreement and occupancy, fix a dispouted and uncertain boundary, is not denied; but it has never been held, so far as we can discover, that a bare trespasser, having no title whatever, can, by such an agreement, become the owner of his neighbor’s land. There is no consideration for, no mutuality of benefit in the agreement when made between such parties; nor does any ■case go so far as to maintain that, under the pretense of fixing the boundary of a natural object like a marsh, it may be plainly departed from near a quarter of a mile.

Judgment affirmed.  