2. Biviszoy ■ toñíaintfih: action. The plaintiff, in. substance, claims, however, that having brought an action to try the title to, or right of possession-of, the land in question, he should not be sent out of court without relief because of his mistake in proceeding; but this contention is not sound, because the plaintiff asks no relief except that an, injunction be granted restraining the defendant from interfering with his unlawful acts, and in argument on another branch of the case, he asserts that no such questions are in the case and,, such being true, he cannot claim that any question other than the right to injunction on the facts alleged was before the court,. and the authorities relied upon by him are not, therefore, in point.
*1633. boundaries: determina-tionof,*162Moreover, on the merits of the case, we think the *163plaintiff not entitled to maintain his action, ior two reasons: The deed from Elsroad and wife to the stats describes the land conveyed as com- . _ . mencmg at the intersection ox the south line of Fourth street with the east line of Oriental street; thence east two . hundred feet; thence' north nine hundred feet, more or less, to a point two hundred feet east of said street, intersected by a line running east from the northeast corner of lot 1116, * * *' known as the.northern parcel of ground in Ft. -Madison owned by the state of Iowa for penitentiary purposes, containing four and sixty-three hundredths-acres, more or less. While it is the general,rule that known and fixed .monuments control courses, distances, and area, it is also true that, where the monuments are not fixed and certain, they are no more controlling. than other descriptions. The reason why they are given greater force when certain and definite is because of the elements making them so in fact. Here the monument, the northeast corner of lot 1116, is not definitely fixed as the point from which the line is to run east to intersect the north and south line two hundred feet east of Oriental street, because the deed further says that the point from which it is to be' run is the northeast corner of the land known as the northern parcel of ground in Ft. Madison owned by the state for penitentiary purposes. The state acquired title to the south two hundred and two feet of lot 1117, it being directly north of lot 1116, at the same time that it acquired title to the latter lot; and there is nothing in the record tending to show that this fact was not as well known as that it held title to any of the lots, and it will be presumed that the true situation, was known and understood. It is conceded by both sides that the.distance of nine hundred feet named in the Els-road deed was a mistake, under any view of the case, for, if the north end of the line is established at the intersection of a line due east from the northeast corner of lot *1641116, as contended for by the plaintiff, the strip of land conveyed would be only eight hundred and eighteen feet long; and, if established at the point contended for by the state, it would be one thousand and twenty feet long. We then have uncertainty in the monument and in the distance, and, such being the case, we are to look to that which is the most certain for the purpose of determining the intention of the parties. Hicks v. Coleman, 25 Cal. 122 (85 Am. Dec. 103); Hall v. Shotwell, 66 Cal. 379 (5 Pac. Rep. 683); McClintock v. Rogers, 11 Ill. 279; Pierce v. Faunce, 37 Me. 63; Hoffman v. City of Port Huron, 102 Mich. 417 (60 N. W. Rep. 831); Gaveny v. Hinton, 2 G. Greene, 344; 4 Encv. of Law (2d Ed.) 800. The deed conveys four and sixty-three one-hundredths acres, more or less, and the actual area claimed by the state is four and sixty-eight one-hundredths acres, while that conceded by the plaintiff is but three and seventy-four one hundredths acres. The quantity of land conveyed is as nearly certain as is usual. A variation of five one-hundredths of an acre is slight, and is covered by the terms of the deed. Furthermore, this amount just filled out the tract owned by the state. There are other circumstances tending to support this conclusion, which we will not specifically mention. 'On the whole record, we conclude that the deed was intended to and did convey to the state the land claimed by it. We do not discuss the claim of adverse possession though we think it well sustained by the evidence.
