
    WILLIAM B. RODMAN v. JEREMIAH GAYLORD.
    Where the evidence, as to the identity of a line belonging- to another tract, called for in a deed, is unsatisfactory, and to reach it, requires a great departure from the course and distance, it was Held to be error to instruct the jury, that the course and distance had to be abandoned, and that the line was called for and must be run to.
    The running and marking a line in 1825, by a surveyor, (though now dead,) under a deed made in 1782, is not proof of the true position of that line, nolis it evidence of what the variation of the compass was between 1782 and 1856.
    Action of trespass Q. C. P.. tried before Heath, J., at the Pall Term, 1858, of Beaufort Superior Court.
    The action was brought for a trespass, alleged to have been committed just west of the line 4, 5. The plaintiff introduced a grant from the State to J. G. Blount, for 8960 acres of land, lying in Beaufort county, dated 22nd December, 1798; the several lines of which, as first called for, are not material to this controversy. The first material call is “ N. 88°, E. 1360 poles to a stake,” (X in the annexed diagram,) then N. 37°, E. 358 poles, to Redding Blount’s line of his Hancock survey, (claimed by plaintiff to be at 4,) then his line N. 50°, W. 100 poles, to his corner (claimed to beat 5); then his line N. 50°, E. 160 poles, to Gaylord’s line (D); then his line N. 40°, W. 225 poles to his corner ; then N. 54°, W. 50 poles to his corner ; then his Jine S. 40°, W. 50 poles ; then his line N. 66° W. to his corner in Collins & Co. line; then their line S. 85°, W. 110 poles to their corner; then to the first station. The figures A, B, S, O, and B, D, 5, S, represent tracts of land granted to one Joseph Hancock in 1782, but it did not appear that Redding Blount was ever connected with them in any way. The line O, S, 5, in the Hancock patents, is laid down in those patents as running N. 50 W., and a point taken on it 100 poles from the end, would be at 4, nearly in a line with 'the course of plaintiff’s line H, X, 4; the next line of the upper patent is laid down as running N. 50, E. 160 poles. After arriving at X, the terminus of. the distance called for in
    
      the line H, X, pursuing the course of the next call in. plaintiff’s deed, the Hancock grants would not be reached at all, but the line would run North of it, X, Y. The nearest point of the Hancock line from X is at 5.
    
      
    
    The defendant contended that the line S, 5, in the Hancock patent laid down in the plat D, B, S, 5, was not the one called for in the Blount grant, inasmuch as it was not shown to be “ Eedding Blount’s line of his Hancock survey,” and that there being nothing to control the call for course and distance, the plaintiff would have to run the line as laid down X, Y. He also contended, that if it was necessary to run to the said grant as being the one called for, then it would have to be reached by the shortest distance, which was X, 5.
    His Honor charged the jury, that there being no evidence of any other Hancock patents or survey other than those represented, the line of Blount’s patent from X, must a^Shdoii^.., the course called for, and strike the line of one of jhése’páV^ ,; ents; that in order to determine the point to b^arrjy^ at “ 
      after leaving X, it was proper to resort to the next subsequent call in the Blount patent, by reversing which, and running 100 poles from 5 to 4, the point was found, which would be at 4. Defendant’s counsel excepted.
    The beginning of the lower Hancock patent was admitted to be at A. It was proved by a surveyer, that he ran the line from A to 0, that he found a line of marked trees from 0 to S, and that extending the line towards 5, according to the course of that marked line, the locus in quo would be on the plaintiff’s land, as above contended for by him; but that., running the line according to the compass, it would be on the Hancock land, and that between these two courses, there was a difference of about a degree and a half. It was also in proof, by one Windley, a surveyor, that according to his experience, old lines were found to vary from the present running of the compass from one to two degrees. It w’as in evidence, that the line of marked trees referred to, was made by another Windley, a surveyor, in the year 1825, for the purpose of making partition between certain heirs-at-law of persons claiming under Hancock, and that the said Windley is now dead.
    Upon this point, the Court charged the jury, that if they were satisfied that the compass had varied from the date of Hancock’s patent, then, in running that line from 4 to 5, they should allow the variation accordingly, and if satisfied that the marked line, was the line run on the original survey, (though marked afterwards,) that was the course now to be run, though it departed from the course called for, as shown by the present pointing of the compass. Defendant’s counsel again excepted.
    There was a verdict for the plaintiff, upon which the Court gave judgment, and the defendant appealed.
    Donnell, for the plaintiff.
    
      Warren, for the defendant.
   Pearson, C. J.

For the purpose of extending the lines of the grant to John G. Blount, under which the plaintiffs claim, they relied on the allegation, that the line 0 S. 5, the western boundary of the two grants isssued to Joseph Hancock in 1782, was the line called for in the grant to John G-. Blount, under the description, “ Redding Blount’s line of his Hancock’s" survey.” Whether this be the line, is a question of fact, and his Honor erred, in assuming, that to be the fact, as he did, in charging, “ there being no evidence of any Hancock patents or survey, other than those represented, the line of Blount’s patent from X, must abandon the course called for, and strike the line of one of those patents.” Whether any one of the lines of those patents, was the line called for, in the patent to Blount, was a question for the jury : provided, there was any evidence to support the allegation ; it may well be doubted, whether the absence of evidence, in respect to any other Hancock patent or survey, furnishes any evidence upon the question ; if it does, it was for the jury to say, whether it is sufficient to establish the allegation, taken in connection with the fact, that it was not proven that Redding Blount ever owned the two tracts granted to Joseph Hancock, and with the further fact, that from X, where the distance gives out, the next call Worth 37, East 350 poles, makes a large angle, and both the course and the distance, would carry you greatly Worth of either of the two tracts granted to Joseph Hancock, and the next call, North 50, W. 100 poles, to his corner, would carry you still further Worth of them ; and the next: then his line North 50, E. 160 poles to Gay-lord’s line, would, carry you entirely away from them, thus giving room to infer that the “Redding Blount line of his Hancock survey,” had no reference to the lines of either of those two tracts of Joseph Hancock, but referred to the line of some other tract lying to the Worth, which Joseph Hancock, or some other Hancock, had at one time surveyed and sold to Redding Blount, but, for which he never took a grant, and the jury should have been instructed, if they were not satisfied in respect to the line called for, there was nothing to control the coui’se and distance of the grant under which the plaintiff claimed.

We think his Honor erred also, in the position, that a line marked in 1825, for the Joseph Hancock grants, furnished, sufficient data to show the variation of the compass in 1782. It wap not competent evidence to establish the location of the line; and, supposing that to have been the line in 1825, when the surveyor took occasion to mark it according to the compass at that time, non constat, that it corresponded witli the compass in 1782, any nearer than in 1856, the date of the last survey.

As the verdict was for the plaintiff in respect to both of the alleged trespasses, an error, as to one, entitles the defendant to a venire de novo ; for which reason, we will not enter into a consideration of the points made as to the other.

Per Curiam,

Judgment i-eversed and a veni/re de novo.  