
    
      Jacob P. Sturgeon vs. John W. Floyd.
    
    A plat annexed to a grant, representing the land as containing fourteen thousand nine hundred acres, located so as to cover one hundred and thirty-six thousand acres.
    In locating lands, course and distance are disregarded where they conflict with marks made by the surveyor, or with well ascertained natural or artificial marks called for on the plat.
    
      Before Butler, J. at Sumter, Fall Term, 1845.
    Trespass to try title. The principal question in the case related to the location of a grant to Robert Fullwood, dated 1st October, 1792, under which the plaintiff claimed. The grant described the situation of the land as follows :
    “Situate in the District of Camden, between Lynch’s Creek and Black River, bounded N. E. by said Fullwood, and Thomas and Samuel Chandler’s lands ; S. E. by Thomas McFadden’s and William McKnight’s; N. W. and S. W. by Daniel Conyer’s and Hugh Gamble’s; all other sides vacant.”
    The plat annexed to the grant represented the land as containing fourteen thousand nine hundred acres.
    Stephen H. Boyken, the surveyor appointed on the part of the plaintiff, said he commenced his survey on the dividing line between the districts of Sumter and Williams-burgh, at the point of its contact with Lynch’s Creek, that line being laid down as one of the boundaries of the Full-wood grant. He pursued that line to Pudding swamp, because it is represented on the original. From Pudding swamp he ran to the Georgetown road, because it was called for; then changed his course and run on that road as far as the original authorized him to go; thence run a straight line to a pond called the Duck pond, and known as the Fullwood boundary. He did not pursue the zigzag course of the original, because he could find no marked trees to guide him; there he stopped on the line. Went on to where Wilson’s road crosses Thick branch. This being a notorious point, he commenced running towards Lynch’s creek, on Cassel’s line, which was a junior grant, and called for Full wood’s as aboundary. Inthusrunninghad to change the course on the original; run N. E. instead of N. W. When he came to the end of Cassel’s grant, crossed Pudding swamp, and run on Chandler’s line, which was called for as a boundary by the grant; continued on this line to Lynch’s creek, then went back and closed the line from Duck pond to Wilson’s road and Thick creek.
    The surveyor on the part of the defendant concurred in the location, that is, if such a grant could be allowed to be located. The original called for 14,900 acres, and it run out 136,000 acres; of course to make this disproportion, the distance had to be greatly extended. The trespass being proved, the plaintiff closed.
    The questions submitted to the jury were those of facts connected with the location, and the matter of damages. Yerdict for the plaintiff, and $5 damages.
    The defendant appealed, and now moved this court for anew trial, on the following grounds:
    1. That the true location of the land in question, does not embrace the alleged trespass.
    2. Because the face of the plat demonstrates that the marks of location were not laid down by rule, but con-jecturally ; and in such case, course and distance can alone be safely resorted to.
    3. The original survey ought not to have been extended twenty-two miles from Lynch’s creek to the Georgetown road, without some evidence, that what is now termed the Georgetown road, is the same road which existed at the time of the original survey, and is found now where it existed then, 53 years ago.
    4. Because the calls are at a distance grossly extravagant, and purely conjectural. It would be a manifest violation of the rules heretofore established by the court, to follow them out; the grant is for 14,900 acres, and the re-survey contains 136,000.
    
      5. The original survey was never actually made. It was a fire-side survey. The warrant of survey was dated 20th Nov. 1791, and the survey was certified 22d Nov. 1791. Whereas, the plaintiff’s surveyor testified, that it took him twenty-eight days to make the re-survey — and that the original survey, if actually made, could not have teen effected in less than fourteen days. In such cases, course and distance ought to govern, and not the calls.
    6. The grant was a fraud upon the State and its citizens, and ought not to be sustained. It might as well have embraced the whole of the State by a nominal survey.
    7. Because his Honor charged that no actual survey, by a deputy surveyor, was necessary to give validity to a grant.
    8. His Honor charged that the call for the Chandler tract, and the call of the Cassel’s grant for Fullwood, were conclusive in favor of the plaintiff’s location. That the survey must extend to them, notwithstanding the distance.
    9. Because his Honor charged the jury, that although the deputy surveyor may not have known the distance of Pudding swamp from Lynch’s creek, yet he knew that the Williamsburg line crossed it somewhere, and having noted it as a mark of location, it must govern where found.
    
      W. F. DeiSaussure, for the motion.
    
      Moses, contra.
   Curia, per

The grounds of appeal relate to the location of the grant to Fullwood, under which the plaintiff claims. Independent of the fact, that, in order to reach the natural marks called for on the original plat, the lines have to be extended so as to include 136,000 acres, instead of 14,900 acres, there is nothing in the location of this land differing from the ordinary cases which arise in the administration of justice. The south eastern boundary is the old parish-line which now divides the district of Sumter from the district of Williamsburg, beginning where that line touches Lynch’s creek. There can be no doubt about the beginning corner. The parish-line is thence represented as the boundary to the Georgetown road, crossing the Lake road, Camp branch, Little and Big Kingstree, Smith’s branch, Long branch, Lowry’s bay, the road leading to Lynch’s creek and Pudding swamp. But in order to extend this line from Lynch’s creek to the Georgetown road, crossing all these natural marks or stations, it is necessary to extend the distance called for on the original plat from 480 chains, or six miles, to 1710 chains, upwards of twenty-one miles. Since the decision of the case of Fullwood vs. Graham, 1 Rich. 491, it is no longer a question that natural marks shall control course and distance, even though the line should exceed the length ealled for four or five fold. In this case, there can be no doubt of the identity of the natural marks. They are all well established, and Pudding swamp, one of them, is represented about its actual distance from the Georgetown road. From the termination of this south-eastern line, the next boundary is along the Georgetown road, with occasional departures from it to the west — a distance apparently on the plat of about five miles. The general course is then changed, and after running various lines, the plat calls for a corner on Thick branch near Wilson’s road,— which are known marks, and according to all the established principles of location must govern in fixing the extent of the land in that direction. I do not mean to say, (nol-is it necessary to the decision of this case) that the plat made by the surveyor is a correct location of all the intermediate points from the Georgetown road to Thick creek and Wilson’s road ; but the line cannot be run in any way from one of these points to the other without including the land in dispute between these parties. The. same remark applies in running the lines from Wilson’s road and Thick creek to Lynch’s creek, whether they are run with reference to the adjacent land called for, or by course and dis- ' tance to Lynch’s creek, which is the boundary on the North. The surveyor has located the land on this side by the boundary of the adjacent lands called for; and this, according to the authorities, is the correct rule where these adjacent lands can be ascertained with sufficient certainty. The principles by which plats of land are to be located, are well established by a variety of decisions. These rules are well laid down in the case of Bradford vs. Pitts, 2 Mill, 315, and in the late case of Fullwood vs. Graham, and if there be any principle clearly established, it is that mere distance is never regarded when it conflicts with either the actual marks made by the surveyor or the well-ascertained marks called for on the plat, suchas creeks, swamps, rivers or roads. In the location of land, the inquiry always is, what was intended to be included within the plat? The question is always one of intention, and in arriving at this we must have regard to the most certain evidences of intention. Now the trees that the surveyor marked ; the rocks that he set up; the fixed and permanent objects which he calls for, are more certain indications of intention than distances or even courses. These should be resorted to only where the others fail. But it is only where these evidences of intention conflict, that one is to override the others. The location is to be made in reference to all of them, where it is practicable. But in this case, it is impossible to locate the land with reference to course and distance merely, without an utter disregard of all the well known and clearly defined objects which are represented on the plat. Can there be any doubt that the surveyor intended his south-east boundary to be the parish-line from Lynch’s creek to the Georgetown road? — ■and yet you cannot give effect to this intention, without extending the line nearly four times the length called for. Can there be any doubt that he intended the Georgetown road to be in part his boundary, and a line or lines running from it to a point near where Wilson’s road crosses Thick creek, and from thence by Chandler’s land to Lynch’s creek ? But this cannot be done, unless we disregard distances and sometimes courses. As I understand the case, the land in dispute is within the Fullwood grant according to any location which can be made of it, unless all the natural marks be wholly disregarded, and the location be made by course and distance alone. But this cannot be done without a disregard of all the principles heretofore- established. The motion is dismissed.

Richardson and O’Neall, JJ. concurred.

Butler, J. absent.  