
    Russell Hamil v. William H. Carr.
    In. 1820, under the direction of the surveyor general of the district, the exterior lines of the township in which the land in controversy is situate, were surveyed, and the section corners thereon were duly established. In the subsequent year one Lowrie was employed by the surveyor general of the district to subdivide the township into sections, by running and marking the section linos, as required by act of congress. Without having fully performed this duty, and without having performed any part of it correctly, he made return to the surveyor general of the district of what purported to be complete field-notes of such subdivision. These field-notes were not recorded in the book kept for that purpose, but were rejected as “incorrect,” and so indorsed. A plat, however, was made of the township, and kept in the office of the surveyor general, showing the subdivision of the township into sections, the lines and distances whereof corresponded with the rejectod field-notes. The section lines, as shown upon the plat, were straight lines between opposite and corresponding section corners on the exterior township lines. Hrom this plat sales were made by the United States to the State of Ohio of those parts of sections one and two bounded by the section line, the location of which is the subject of controversy in this suit. No reference is made in any act or instrument of conveyance to either the plat or field-notes, nor does the plat refer to the field-notes. The boundary between the sections is described only as a section line. Upon this state of facts — held,
    1. That the survey and field-notes, as made and returned by Lowrie, must be taken and held for naught.
    2. That a party claiming title under the State to lands bounded by said section line, is not estopped from denying the correctness of said plat or field-notes.
    ,3. That the line between sections one and two must be ascertained by running a straight line from the corner of the sections, as established on the exterior line of the township to the corresponding section corner on the opposite ■township line.
    Error to the district court of Williams county.
    The original petition, filed by Carr against Hamil in the ‘Court of common pleas, was for the recovery of the possession of real estate. The land is thus described in the petition : ‘1 The east part of the north half of the south-east quarter of section No. two in township No. six, north of .range No. one, east, bounded on the north by the quarter line running east and west through said section two, and on ‘the east by the section line between sections one and two in said township and range, and more particularly described as follows: Commencing at a point 41|- rods west of the northeast corner of said south-east quarter, in the said quarter line, running thence east forty-one and one-half rods to the north-east corner of said south-east quarter, thence south on said section line eighty rods, thence west forty-one and one-half rods, thence north to the place of beginning, containing twenty and seventy-five hundredths acres of land, be the same more or less.”
    To this petition the defendant below, now plaintiff in error, answered, denying that he was in possession of the land described in the petition.
    The question thus presented was one of boundary. The defendant below made no claim to any land in section two. The land which he owned was entirely in section one. The land desci’ibed in the petition was placed entirely in section two. The question, then, was as to where the boundary lixxe ran betweexx these two adjacent proprietors. If it ran where the plaintiff below claimed it, thexx the defendant was in possession of the land described, and the judgment of the court of common pleas was properly for the plaixxtiff. But if the boundary ran where the defendant below claimed it, then section one covered the land really in controversy, and the defendaxxt was xxot in possessioxx of the laxxd described, because he was not in possession of axxy land in section two ; aixd the petition so locates the land demanded.
    The case was submitted to the coux’t upon an agreed statement, as follows:
    “ It is admitted that the following facts have been established by the proof:
    “1st. The chain of title through which the plaintiff claims is the following : Sections five and six of an act of congress, approved May 24, 1828, found on page 306 of the 4th volume of the Uixited States statutes at large, here referred to, aixd to be treated the same as though copied heroin at length, the provisions of which act were accepted by the legislature of the State- of Ohio.
    
      “ The facts stated in the following certificate, which ia admitted without objection :
    “General Land Oeeice, July 15, 1851.
    “I, John Wilson, acting commissioner of the genei'al land office, do hereby certify that the annexed copy of list No. 5 of the selections for canal purposes in the State of Ohio, is a true and literal exemplification from the original on file in this office.
    “ In testimony whereof, I have hereunto subscribed my name, and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written.
    “John Wilson,
    
      “Act’g Commissioner of the General Land Office.
    
    “List No. 5.
    “ Selections, by the authorities of Ohio, made under the 5th section of the act of the 24th May, 1828, in the Defiance land district, corrected and engrossed from the lists dated 19th January, 1829, and forwarded by the governor of Ohio: .
    Sec. Town. Rango. Acres. Hds. Description.
    
    2 6 N. IE. 16 29 “N. E. fi\ of N. i of...
    2 “ “ 129 47 “ W. p. of N. E. fifi i..
    
    2 “ “ 147 22 “N. W. fi\ of S. i.....
    2 « “ 158 49 “ Er. S. of River.......
    John W. Allen, “Mag 21, 1851.
    “ Agent for State of Ohio.
    
    “Department oe the Interior, \
    
    
      “Washington, June 17, 1851. j
    “ The selections embraced in the within list are hereby affirmed, subject to any rights which may have existed at the time they were made known to the land office by the proper authorities.
    “Alex. H. H. Stewart,
    
      “Secretary.
    
    
      “ Office of the Auditor of State, )
    
    “ Oolumbus, 0., May 19, 1868. £
    “ I hereby certify the above to be correctly copied from the records of this office.
    “ Witness my hand and official seal the day and year above written.
    “Jas. H. Godman,
    ‘1 Auditor of State.
    
    “ In vol. 10, page 634, U. S. statutes at large, the following act will be found :
    “ ‘ An act to confirm the canal selections in the State of Ohio:
    “ ‘ Be it enacted by the senate and house of representatives of the United States of America in congress assembled, That the selecting of land by the State of Ohio for canal purposes, under the act of second March, 1827, and 24th May, 1828, be, and the same are, hereby confirmed.
    “ ‘ Approved March 2d. 1855.,
    “The s. e. frac, of s. e. | sec. 2, tp. 6, n. r. 1 e. 158.49 a. was entered as canal lands by Robert and Thomas Stuart, of Portage county, Ohio, at the land office at Piqua, on the 19th June, 1834, and deed issued by the State, July 4, 1834, as appears from the files of the office of auditor of State. The records of this office do not show any conflicting title.
    “ Oolumbus, May 20, 1868. Chas. J. Wetmore,
    
      Olerh of Land Department.
    
    “ A patent or deed duly executed from the State of Ohio, to Robert and Thomas Stuart, dated July 4, 1834, conveying land by the following description, viz : The southeast-fraction of the south-east quarter of section number two, township number six (north) range number one, (east) containing one hundred and fifty eight and forty-nine hundreth acres of land more or less, in the Piqua land district.
    A deed duly executed from Robert and Thomas Stuart to the plaintiff, dated Eebuary 19, 1857, conveying the same land by the same description.
    “ The plaintiff at the commencement of this suit, was the owner, and entitled to the immediate possession of the land which his title so acquired embraced.
    “2d. That the defendant at the time of the commencement of this suit was the owner in fee simple, and entitled to the possession of the lands in the north half of the southwest quarter of section number one in the same township, which he had acquired by patent or deed duly executed from the State of Ohio; and the State of Ohio acquired title to the same by the facts stated in the following certificate, which is admitted without objection, and the act of congress therein referred to, which is also made a part of this agreement, the same as though it were fully copied herein.
    ‘ List of selections approved by the president of the United States on the 3d day of February, 1837, as a portion of the lands intended to be granted by the United States, by act of congress, approved 19th June, 1834, entitled an act to grant to the State of Ohio certain lands for the support of schools in the Connecticut western reserve within the limits of the Lima Dist., when reserved by the president:
    
      Quantity.
    
    ‘Part of section......Section. Township. Range. Acres. Hds.
    ‘South half of......... X 6 N. XI. 320 00
    General Land Office, November 11, 1848.
    11 hereby certify that the foregoing pages, 1, 2 and 3 ot this sheet, is correct.
    ‘ Richard M. Young, Commissioner.
    
    “Office of Auditor of State, )
    
    “ Columbus, May 21, 1868. £
    “ I certify the above to be a correct extract from the origL nal papers on file in this office.
    .“ Witness my hand and seal officially the day and yeai above written. “ Jas. H. Godman,
    “ Auditor of State.
    
    
      “ 3d. That the defendant was, at the time of the commencement of this action, in the actual possession of the lands in controversy, claiming them to be part of his lands in section one. while plaintiff claimed them to be part of his lands in section two.
    “4th. That in the year 1820, the exterior lines of said township No. 6 of range number one east, were surveyed by. S. Carpenter, jr., a deputy surveyor employed by the surveyor general of the district in which said lands were located, and that in making such survey the exterior lines of said township were duly surveyed and marked, and were substantially on the line of the true meridian, and at right angles thereto.
    “ 5th. That upon such exterior lines, section and half section corners were duly marked and established.
    “ 6th. That field notes of the survey were returned to the surveyor general on which the location of each corner was described with its marks and bearing trees.
    “ 7th. That the corners thus established and marked upon the exterior lines can, at this time, be ascertained, in some cases by the original monuments and bearing trees as laid down in the field notes, and, in cases where the original monuments and bearing trees are lost, by measurement from those found and blazed trees on the line ; and they invariably correspond where found with the field notes.
    “ 8th. That the surveys returned by said Carpenter were accepted by the surveyor general of the district and duly recorded in the record of his office.
    “ 9th. That the corners of said township, as surveyed by said Carpenter, can, at this time, be found by measurement and ranges of blazed trees, as also, in the same way among others, the corners on the south boundary liue between sections 35 and 36, on the north boundary line between sections 1 and 2, and on the east boundary line between sections 1 and 12, and on the west boundary line between sections 6 and 7. That on the north-east corner of the township is found an old fence which has for many years been treated as the township corner.
    
      “10th. That in the month of September, a. d. 1821, one John Lowrie was employed by the surveyor general of the district to make a sub-division of this township, and also of township No. 6, of ranges Nos. 2 and 3, and to survey and mark the interior lines and corners thereof.
    1111th. That subsequently said Lowrie made a return to the office of the surveyor general of the district, of what purported to be the field notes of his survey and sub-division of said township, but that the same were never recorded, and there appears upon the front pages thereof, in red ink, the words : ‘ Incorrect and not recorded, B. P. R.’
    “ 12th. That in the books of records of field notes in the office of the surveyor general, space is left for these three townships, and there is endorsed on the margin of such space, in pencil, ‘ left blank for the purpose of recording when the town shall be re-surveyed.’ In the case of T. 6, R. 3, it is said, 1 tliis township was never sub-divided, forged field notes having been returned.’ The notes of the several townships are apparently in the same handwriting and similar in appearance.
    “ 13th. That none of the east and west sub-division lines of the township appear to have been run or marked. The same is true of north and south lines in the three western tiers of sections, except that at the corners of section sixteen there are marks upon the trees which have somewhat the appearance of corner marks without any witness lines. On the ntirth and south line, between sections 35 and 36, at the north-west corner of section 36, there have been found marks indicating a corner, but there are only occasional blazes to be found on the intermediate lines between the two sections. From this corner there is no evidence of any survey or marking of the line between sections 25 and 26, 23 and 24, 13 and 14, and 11 and 12. But many years ago the line between these sections was run by the surveyor of the county, substantially by extending the line through sections 35 and 36, to the corners of sections 11, 12, 13 and 14, and this line had since been recognized by the adjoining proprietor’s as the true line to that point. At a point 10.05 chains west of this line extended, and 3 chains south of a line drawn from the corner between sections 1 and 12, on the east boundary line of the township to the corner of sections 6 and 7 on the west boundary line of the township, is found a beech tree which, has upon it the figure ‘2,’ evidently made at an early date by a surveyor’s marking iron, and the words ‘ C. French,’ also made at an early day with a knife. The field notes for the corner of sections 1, 2, 11 and 12, call for a post from which a beech 12 inches in diameter bears n. 60°, w. 33 links, and a beech 8 inches in diameter s. 45° e. 41 chains distant. The tree is old, but no marks such as are usually found upon witness trees have ever been seen upon it. The field notes of the line between sections 1 and 2, are as follows :—
    ‘North between sections 1 and 2 T. 6, R. 1 e. 31.10, a. sugar, 8 inches in diameter.
    ‘ 40.00; set sec. post, a beech 24 ins. diameter, from which-an ash 14 ins. in diameter bear s. 23°, w. 25 links dis< tant.
    ‘ 51.75 ; struck St. Joseph river.
    ‘ 53.00 ; crossed St. Joseph river.
    ‘ 59.50 ; struck St. Joseph river.
    ‘ 63.10 ; crossed St. Joseph river between two willow bars.
    ‘ 83.40 ; intersected north boundary line 2 chains east of. post. Set post corner sections 1 and 2, from which elm 11 ins. diameter bears n. 40°, e. 12 links distant.
    “ Following north from the beech tree marked ‘ 2,’ a few blazed trees are found having the appearance of being blazed by LT. S. surveyors as long ago as 1821. Forty chains and 75 links north of this tree is a beech tree corresponding with the one called for as quarter post, having upon it the usual marks of a quarter post as made by the U. S. surveyors, but the ash tree called for as a witness tree is not to be found. This line extended north strikes the St. Joseph river 51.66 chains from the tree marked ‘ 2.’ The same line extended north crosses the river again between two clumps of willows that have the appearance of having been willow bars ; but being extended to the north line of the township, would strike that line 10.37 chains west of the corner of sections 1 and 2, as now ascertained in the manner before stated. Measured in a direct line, the distance from the last crossing of the St. Joseph to the town line, is 20.30 chains ; but measured so as to strike the north line of the township two chains east of the section corner, the distance is 26 chains. There ■ is no evidences whatever of a marked line north of the river, and to strike a point two chains east of the section corner, it will be necessary to diverge 12.37 chains east from a due n. and s. line in going 26 chains. The field notes make the distance from the east line of the township, at the corner of sections 1, 2, 11 and 12, 80.16 links. The actual distance to the tree marked ‘2 ’ on that line, is 90.13. The field notes for the line between sections 1 and 12, are as follows :
    ‘East, random line between sections 1 and 12, 16.00 ; a line 18 ins. in diameter.
    ‘ 40.00 ; set temporary \ sec. post.
    ‘ 55.00 ; an ash 33 ins. diam.
    ‘ 80.16 ; intersected east boundary 75 links north of post. Land first-rate, dry and level ; timber large, poplar, ash, &c. ; undergrowth beech, ironwood, &o.
    
    ‘West. Corrected between secs. 1 and 12.
    ‘ 40.08 ; set | sec. post at average distance, from which an ash 16 ins. diam. bears s. 18 w. 24 links, and a w. oak, 11 ins. diam., bears n. 34 w. 10 links dist. 80.16, section corner.
    “ There is nothing to be found on this line to correspond with these notes.
    “ 14th. There are no trees to be found in the township marked as U. S. surveyors usually mark witness trees, but there is one tree found near the s. e. corner sec. 16, which has one notch upon it. Witness trees usually have thre'e notches.
    “ 15th. The south corner of sections 34 and 35 is found on the south line ot the township. This line can be traced north by occasional blazed trees between these sections, but partial evidences of a corner are found 4.20 chains west of this line. From this corner a line is traced north by occasional blazed trees near to the north line of the township, but it comes to the township line 4.20 chains west of the corner, while the field-notes call for it to meet at the corner.
    “ Nearly all the corners of section 16 are found partially marked. Not more than 11 or 12 corners were ever found for interior sections, and these have no witness trees, and are but partially marked in the usual manner of marking by U. S. surveyors.
    “ 16th. The field-notes of the township, as returned, represent a complete survey, in every respect conforming to tho rules and regulations of the land office, with corners, distances, witness trees, character of soil, &c. This is as well the case upon lines where there are no traces .whatever of surveys, as on those where there are partial evidences of a survey.
    “ 17th..There is no evidence to be found that any line was ever actually run or marked by the U. S. surveyor south, east or west from the tree marked “ 2," and to connect it with the line occupied to the south corner of sections 11 and 12 there must be a divergence from that line to the west, in crossing on section, of 10.05 chains.
    
      “ 18th. No corners or traces of survey in the subdivision of the township are found in sections 1, 2, 11, 12, 13, 14, 23 and 24, except such as are hereinbefore referred to.
    i: 19th. In the year 1865 a survey of this township was made by commissioners appointed for that purpose by the commissioners of Williams county, under and by virtue of the provisions of the act of the general assembly of the State of Ohio, passed February 8th, 1847, entitled “ An act to appoint commissioners to establish sections, lines, corners and quarter posts in the townships of St. Joseph, Center and Potaski, in the county of Williams,” found in vol. 45 of Local Laws of Ohio, page 145. The commissioners, in making this survey, ascertained, in the manner hereinbefore stated, the location of all the section comers on the south, east and north exterior lines of the township. They then commenced on the s. e. comer of the township, and measured and located the south, west and north lines of section 36, and so around each of the sections on the east line of the township, planting corners for each section. The west line of this tier of sections, as surveyed by them, struck the north line of sections 1 and 2 at the point as ascertained to be the original section in the original survey of the ex-tei'ior lines of the towxxship, as hereinbefore stated. The survey also corresponded with the section corxxex-s as established on the eastern exterior boundary line. The line passed 10.05 chains east of the tree marked “ 2,” and the same distance east of the beech tree having upoxx it the marks of the quarter post, between sections 1 and 2. The lixxe does xxot cross the St. Joseph river, but passes entirely east of it. The distance of the west line of the eastern tiers of sections, as surveyed by the comxnissioners, from the east line of the township, correspond substantially with the distances givexx in the original field-notes. This line, as surveyed by the commissioners, is substaixtially a true line between the south corner of sections 35 and 36, and the nortn corner of sections 1 and 2. It corresponds substantially with the line between sections 35 and 36, and strikes 55 links east of the old xxorth corner of those sectioixs. North from that poixxt is the s. corner of sections 11 and 12. It runs a few links east of the old surveyed line, as surveyed early by the county surveyor, and occupied by the adjoining proprietors. At the si corner of sections 11 and 12 it is 65 links east of the comer established by the surveyors at aix early day. From that point the line claixxxed by the defendant diverges on an angle to the tree marked “ 2,” where it is 10.05 chaiixs west of the line surveyed by the commissioners. From there the line claimed by the defendant runs parallel with that run by the comxnissioners, and 10.05 chains distaixt, until it crosses the St. Joseph xiver the second time. From that point-to the sectioxx corner on the xx. line of the township, as laid down by the U. S. sxxrveyor in his field-notes, the line claimed by the defendant runs on an angle, and crosses the lixxe surveyed by the commissioners a short distance south of the section corner. The tier of sections next west of the eastern tier of sections was surveyed by the commissioners in the same manner as the eastern tier, commencing at the south corner, between the sections 34 and 35. Erom thence north on the line between sections 34 and 35 the line is the same as that originally partially blazed, but the n. corner of sections 34 and 35, as established by the commissioners, is 4.20 chains e. of a corner bearing some partial evidences of having been marked as a corner of those two sections. The line between sections 34 and 35 extended to the north line of the township, strikes the corner established in the survey of the exterior lines of the township at the corner of sections 2 and 3. On the old line north from the partially marked corner of sections 34 and 35, are occasional blazed trees to the north line of the township, but it strikes the n. line of the township 4.20 chains west of the section corner.
    “ 20th. Annexed hereto, marked “A,” is a copy of the plat of the towwnship found in the office of the surveyor general, and from which the sales were made at the land office. The lines and distances, as noted, correspond with the field notes as returned by the surveyor.
    “ 21st. Annexed hereto, marked “B,” is a map* showing the lines of the two eastern tiers of sections in the township. The lines in black, are the lines of the survey so made in 1865, by the commissoners appointed under the act of the general assembly. The dotted lines in red, shows the line surveyed at an early day north from the north corners of section 35 and 36 to the south corner of sections 11 and 12, and treated as the boundary lines between the adjoining proprietors. The dotted line in black shows the line as run from the south corner of sections 11 and 12 to the tree mai'ked “ 2, ” thence north across the St Joseph river ‘twice, and through the beech tree marked as | section corner, and from the north bank of the St Joseph river, after the second crossing, to a point two chains east of the section corner. The dotted line in black on the west side of the section. shows the line as found partially blazed north from the west line of the second tier of sections. To the north line of sections 34, 35 and 36, the line of the old survey corresponds substantially with that of the new. The figures in black, show the distances, as made by the new survey in 1868. Those in red, show the distances on the old line by actual measurement. The distance from Y to X, as made by the field note 20.30 ; by actual measurement, it is 26.00 — difference 5.70.
    “ 22nd. The field notes, as returned, do not, as a general thing, correspond with the facts as to the description of the land through which the lines run, though substantially they do from the tree marked “ 2,” to the second crossing of the St. Joseph river.
    “23rd. Save the quarter section corner on the west line of section 1, hereinbefore referred to, no original quarter section corner has ever been found in the interior survey of the township.
    “The premises in dispute are situated between the line running north from the tree marked “2,” through the tree marked as a quarter post, and crossing the river twice, the last time between a clump of willows, and the line drawn from the corners of sections 35 and 36, on the south boundary, to the corner of sections 1 and 2 of the north boundary, established in the manner hereinbefore mentioned, as the corners in the original survey of the exterior boundaries of the township, and in the north half of s. e. | sec. 2, if the line of that section should be established east of the first mentioned line.
    “24th. The commissioners appointed by the county, in running their lines as aforesaid, paid no attention to the field notes of the survey of the meanderings of the St. Joseph river. These field notes were in evidence, and it appeared, as far as they had been tested, that they were correct. It also appeared that the line, as claimed by the defendant, which crossed the river twice, corresponds, with the field notes, of the meanderings of the river, showing where the section lines crossed the river. This survey of the meanderings was not made by Lowrie, but by one John Perkins, and was regularly returned, accepted and recorded.
    “ The case is submitted to the court for decision upon the facts hereby admitted.”
    The error assigned is that the judgment of the court of common pleas was contrary to the law and the evidence, and that the district court erred in affirming that judgment.
    
      Kent, Newton & Pugsley for plaintiff in error.
    
      M. B. & B. Wait, and J. A. Simon for defendant in error.
    
      
      It is not practicable nor material to here give this plat and map.
    
   McIlvaine, J.

The only question in this case is the location of the boundary line between sections one and two, in townsliip six, north, of range one, east. This lino, where-ever found, is common to both sections, and must determine the controversy between these parties. The section corners on the exterior lines of this township were established in the year 1820, by a survey by deputy surveyer Carpenter, duly made and approved before the lands were put into market. These corners have been and still are readily ascertained from Carpenter’s field notes. A straight lino drawn from one of these corners, found on the north line of the township and common to sections one and two on the north, to a corresponding corner on the south line of the township, common to sections 35 and 36, will locate this line as it was claimed by the plaintiff below. The line thus ascertained must prevail, unless the testimony shows that this section line was located and established elsewhere.

The defendant below claims that the line in controversy is situated 10.05 chains west of the line above described and parallel with it.

The description of -this boundary line, as contained in the plaintiff’s deed, and in all the muniments of his title, is simply the section line. No other calls are made and no other description given. And the same is true of the defendant’s title papers. We take it, therefore, that the burden of showing that the actual location of this line has been made at a place other than where it should have been located, devolves upon the defendant, who makes the claim.

It appears from the agreed statement of facts, that- in the year 1821, one John Lowrie was employed by the surveyor general of the district to sub-divide this township into sections, &c. That afterwards he (Lowrie) made a return to the office of the surveyor general of the district, of what purported to be the field notes of his survey and sub-division of the township. But these field notes were never approved or recorded, and there appears upon the front pages of the same, as found in the land office, the following words, in red ink : “Incorrect and not recorded, B. P. R.” There is also found in the book of records of field notes, a blank space left for this township, in the margin of which there is written in pencil, the following words: 1 ‘ Left blank for the purpose of recording when the town shall be re-surveyed.” No other survey appears to have been made by the general government.

The agreed statement also shows that, in point of fact, the east and west sub-division lines of this township never were run or marked. And the same is true of the north and south lines of the three western tiers of sections, (except at section 16,) and the same is generally true of the balance of the township. But we find there is a line distinctly marked at the place where the defendant claims the location of this boundary, between sections one and two, corresponding with the calls and description contained in the field notes as returned by Lowrie. This line is 10.05 chains west of the straight line above described, but does not appear to have been run or marked south of the south line of sections one and two.

The following statutory provisions were in force at the date of these surveys :

By the act of congress, passed May 18, 1796, (Brightly’s Dig. 493, sec. 208. 1 U. S. Stat. at Large, 464, sec. 2,) it was provided, that in the survey of lands in Ohio, they “ shall be divided by north and south lines run according to the true meridian, and by others crossing them at right angles so as to form townships of six miles square. * * * The corners of the townships shall be marked with progressive numbers from the beginning ; each distance of a mile between the said corners shall be distinctly marked with marks different from those of the corners. One half of the said townships, taking them alternately, shall be sub-divided into sections, containing, as nearly as may be, six hundred and forty acres each, by running through the same, each way,, parallel lines at the end of every two miles ; and by marking a corner on each of said lines at the end of every mile ;. the sections shall be numbered respectively, beginning with number one, in the north-east section, and proceeding west, and east alternately, through the township, with progressive numbers, until the thirty-sixth is completed. And it shall be the duty of the deputy surveyors, respectively, to cause to be marked on a tree near each corner made as aforesaid, and within the section, the number of such section, and over it the number of the township in which such section may be; and the said deputies shall carefully note, in their respective-field books, the names of the corner trees so marked, and the-numbers so made. * * * * All lines shall be plainly marked upon trees and measured with chains, &c. Every surveyor shall note in his field book the true situation of all-mines, salt licks, salt springs and mill sites, which shall come-to his knowledge ; all water courses over, which the lines he-runs shall pass ; and also the quality of the lands. These field books shall be returned to the surveyor general, who shall therefrom cause a description of the whole lands surveyed to be made and transmitted to the officers who may superintend the sales; he shall cause a fair plat to be made-of the townships and fractional parts of townships contained in the said lands, describing the sub-divisions thereof, and the marks of the corners. This plat shall be recorded in books to be kept for that purpose ; á copy thereof shall be kept open at the surveyor general’s office for public information; and other copies sent to the places of sale and to the secretary of the treasury.”

On the 11th Feb., 1805, another act was passed, (Brightly’s Dig. 494, sec. 211, 2 U. S. Stat. at Large, 313, see. 1), by which it was provided, that the surveyor general should cause the lands which had been surveyed and sub-divided under the provisions of the foregoing act, “to be sub-divided into sections, by running straight lines from the mile corners thus marked, to the opposite corresponding corners, and by marking on each of said lines intermediate corners as nearly as possible equidistant from the comers of the sections on the same.”

By the same act, (Brightly’s Dig. 466, sec. 41, 2 U. S. Stat. 313, sec. 2), it was provided that “the boundaries and contents of the several sections, half sections and quarter sections of the public lands of the United States, shall be ascertained in accordance with the following principles, any act or acts to the contrary notwithstanding :

“ 1st. All corners marked on the surveys returned by the surveyor general, &c., shall be established as the proper corners of sections, or sub-divisions of sections, which they were intended to designate; and the corners of half and quarter sections not marked on the said surveys shall be placed as nearly as possible equidistant from those two cornel’s which stand on the same line.
“ 2d. The boundary lines actually run and marked in the surveys returned by the surveyor general, &c., shall be established as the proper boundary lines of the sections, or subdivisions for which they were intended, and the length of such lines, as returned by either of the surveyors aforesaid, shall be held and considered as the true length thereof. And the boundary lines which shall not have been actually run and marked as aforesaid, shall be ascertained by running straight lines from the established corners to the opposite corresponding corners, &c.
“ 3d. Each section, or sub-division of sectioiz, the contents whereof shall have been, or by virtue of the first section of this act shall be, returned by the surveyor general, &c., shall be held and considered as containing the exact quantity expressed in such return or returns ; and the half sections and quarter sectiozzs, the contents whereof shall not have been thus returned, shall be considered as containing the one-half or the one-fourth part respectively of the returned contents of the section of which they make a part.”

Upon the foregoing statement of facts we are of opinion that the line between sections one and two was not established by the survey made by Lowrie ; that the sub-division of the township into sections, as made by him, should be treated as though it had not been made ; and that the field-notes, as returned by him to the office of the surveyor general of the district, have no force or validity whatever.

Annexed, however, to the bill of exceptions, is a copy of a plat of this township, found in the office of the surveyor general, and from which the sales were made at the laud office. The lines and distances noted on the plat correspond with the field-notes returned by Lowrie.

By inspection of the plat, the division line between sections one and two appears to be part of a straight line drawn from the corner of sections one and two, as fixed by Carpenter, on the north exterior line of the township, to the corresponding corner on the south of sections thirty-five and thirty-six. It also appears that this line crosses the river twice, whereas, in fact, a straight line between those points passes east of the river.

It also appears from the plat that the fractional parts of section two (formed by the course of the river) correspond in quantities with the fractions selected by Allen, as agent for the State, in list of selections No. 5, the fraction south of the river containing 158.49 acres. This fraction embraces lands in the north-east as well as in the south-east quarter of the section, while only that part of the fraction lying in the south-east quarter was conveyed by the State to the Stuarts, and afterwards by them to the plaintiff below, as containing the same quantity, to wit: 158.49 acres, and described as the s. e. frac, of s. e. | of sec. 2, &c. Whether the field-notes returned by Lowrie indicated these fractional quantities we are not informed. It appears, however, from the record that, with the exception of quantity, the section line located according to the claim of either party equally fills the description in the chain of title, to wit: the fraction south of the river: but we are not advised which location, or that either of them, will verify the quantity called for in the deed or in the selection.

We are satisfied, however, that the plat was drawn from the field-notes of Lowrie. Upon this state of facts the plaintiff in error insists upon the following proposition: “If this map was used to furnish the descriptions of the grant, by these descriptions must the thing granted be described, whether the survey and map were accurate or inaccurate ; whether the surveyor did his duty or did it not. This was the only map in existence at the time of the grant, and of course the only, one known to the contracting parties, viz : the United States and the State of Ohio.”

That the map furnished the description, so far as quantity is concerned, may be true ; but that the description of boundaries was furnished by the map does not appear. In the description of boundaries no reference is made to the-plat, nor does the plat refer to the field-notes. The boundary at the place in controversy is described as a section line. And as boundary controls quantity, in matters of description, we are brought back to the question, Where is the section line ? It had not been located or established at that time. This fact must have been known to the contracting parties. It must also be presumed that they knew the law to be, in such a case, that the section line must be ascertained by running a straight line between opposite corners on the exterior township lines. These corners had been established by Carpenter in 1820, and we must therefore conclude that the parties intended that the line should be ascertained in the manner prescribed by the act of congress of 1805, and that they did not intend to adopt or ratify the rejected field notes returned by Lowrie.

Judgment affirmed.

Welch, C. J., and White, Day and West, JJ., concurred.  