
    COWAN vs. HARROD.
    
      From the Mercer County Court.
    
    THIS, the Reporter believes, is the only case where an attempt has been made, in this state, to carry into effect the law of 1779 as to rectifying mistakes in original surveys. See 2 Dig. 719.
    A transcript of the record will exhibit the case more fully and satisfactorily than any statement which he can make.
    “ At a county court held for Mercer county, at the court-house, on Tuesday the 27th day of March, 1798, John Cowan petitioned the court to rectify certain mistakes in the bounds of his land, whereon he then resided, and Ann Harrod, guardian of Margaret Harrod, heir of James Harrod, deceased, opposed the said petition; and the said Cowan, in its support, introduced James Thompson, Esq. as a witness; but the court refused to hear his testimony: Whereupon the said Cowan, by his attorney, exhibited his bill of exceptions in the words and figures following, to wit:
    “ Mercer County Court, March, 1798—This day John Cowan, who had filed a petition, and proved advertisement and notice to Ann Harrod, guardian of Margaret Harrod, heir of James Harrod, deceased, for the purpose of rectifying certain mistakes in the bounds of his land, whereon he lived, in Mercer county, to wit, that one part of the line, extending east and west, between his land and that of said Harrod, had not been run by the surveyor who first surveyed the land; but that the surveyor had begun the survey in the middle of said division line, and having run round to the east corner, called for the whole line, without having run so much of it as would close the survey from the last corner to the place of beginning; and the surveyor having, by a former order of said court herein, returned his survey as annexed hereto, the said John Cowan offered to produce and examine James Thompson, Esq. as a witness, who first surveyed the land; offering to prove by him, that it was agreed between said Cowan and Harrod, that a line extending east and west, and to be fifty poles from said Cowan’s then dwelling cabin, (marked by the name of his improvement, in the annexed plat,) should be the established line of division between them; and that he, the said Thompson, in presence of said Cowan and said James Harrod, did measure fifty poles from said Cowan’s cabin to the place where the lowest tree now stands, and called for in the annexed plat, and from thence (agreeable to the contract between said Cowan and Harrod,) and in presence of both, did run west, and corner at the three sugar trees, where the patent purports the beginning to be; and having measured and marked the lines round to the letter B. in the annexed plat, called for the beginning without having measured the line from B. to A. or having measured or marked the line from B. to a. To which testimony the said Ann Harrod, guardian, &c. objected, for that the court ought not to admit parol proof in such a case, because, from the face of the title papers, it was apparent that the four corners of said Cowan had been made by the surveyor, and a straight line from those corners was not required by said Cowan; but a new line and corner was required by said Cowan. And the said John then and there insisted that the court should admit the proof and continue the line A. a. east to b. being the division line agreed on; but the court refused to admit the evidence, and repelled the petition of said Cowan; whereto he excepted, and prayed the court to set their seals thereto, and that the same be entered of record.
    Samuel Ewing, [Seal.]
    Garret Darland, [Seal.]
    D. Kox, [Seal.]
    John Rochester, [Seal.]
    
      “ And prayed an appeal to the court of appeals; which was granted him upon his entering into bond with Samuel Taylor, George Caldwell or Joseph H. Daveiss, or either of them, his securities, as the law directs.”
    
      
    
    Explanation.
    In the annexed plan A. B. C. D. represent John Cowan’s survey, according to patent, the corners containing or having trees mentioned in the original grant. The line A. a. 247 poles, a marked line as far as not cleared ground, terminating at a black locust in John Cowan’s lane, which locust is N. 2 W. 50 poles distant from his improvement, marked O. From B. three linns, (two of which are down,) N. 2 W. 14 poles, to a linn, buckeye and elm at b. a corner that ranges with the aforesaid line A. a. or is in the same course, but appears to be an open line, as no marked trees could be discovered; that is, the line from B. to b. 14 poles, is no where marked, that appears, nor the linns, buckeye and elm before mentioned, are not marked; as also the open line aforesaid, that is, from the said linns, buckeye and elm to the black locust in John Cowan’s lane, appears no where to have any marked trees. The line B. C. is 62 poles, E. corner to Col. Harrod, a fallen sugar tree, and the line c. d. his line running from John Cowan’s survey, &c. Note—The line A. a. and b. is N. 88 E. and is at right angles to the line A. D. and B. C. March 24th, 1793.
    A copy—Teste, John Thomas, S. M. C.
    
      Cowan’s patent was dated June 1st, 1782.
   The following opinion of the court of appeals was delivered by

Chief Justice Muter.

The court is of opinion that the county court of Mercer did, with propriety, refuse to admit the parol testimony, as stated in the bill of exceptions, and to permit the appellant to make a survey which would not have been conformable to his title papers, or some of them, or which would intrude upon the possessions of any other person.

Judgment affirmed with costs.  