32 Ky. 1 | Ky. Ct. App. | 1834
delivered the Opinion of the Court.
In this case (ejectment,) the only question deemed by this court worthy of special consideration, is, whether, as the appellant contends, the circuit court erred in instructing the jury that, “ where one corner of a survey (having had four corners) is lost, and it cannot be proved where the corner stood, the proper mode of fixing such corner is by pursuing the marked line of the original survey, leading to the place where such corner stood, and also retracing the marked boundary leading from the place where the corner stood, to the intersection of the two lines; and if, in consequence of the ground being cleared about the place where the corner
The record does not shew what facts appeared on the ílaa' > but whatever they may have been, or whatever they may have conduced to prove as to the true posi^on °f so ™uch of-the line as cannot be now identified by actual demarcation, we are of the opinion that, in . . ■ . , ,. . ., . . giving the foregoing instruction, the circuit judge asSutned, as a matter of law, that which was purely a question of fact, for the sole consideration of the jury ; and that, therefore, the instruction was, in that respect, ina1 provident and erroneous.
Although it would be unreasonable to expect that any surveyor, however vigilant and skilful, could pursue, mathematical precision, the exact course designated in an entry or patent, and, therefore, the line actually traced hy him must, when sufficiently identified, be deemed the legal as well as actual boundary; nevertheless, when he shall not have marked the line, or when it cannot be identified though once marked, the patent course , , _ 1 , , , fixes the true constructive boundary. Hut whether the line was ever act,iahy run or marked, and, if it were so designated, where it was, are not deductions of law or matters construction, but are facts to be ascertained and settled by a jury, and a court should not, by construction, fix the line, if there be any proof whatever tending legitimately to shew, that it was actually run, and where. If, however, there be no proof as to its actual position, even though there be proof that it was once run and marked, the patent course must govern, and the court should so instruct the jury.
These fundamental positions not only accord with reason and propriety, but are well established by adjudged cases. In Cowan et al. vs. Fauntleroy et ux., 2 Bibb, 262, this court said—“ If, however, in making a survey, a line shall have been marked, as in the present
The following propositions arc incontr-overtibiy true upon principle, reason and authority : — •
1. When there is no evidence that a line was actually-run by the surveyor, or as to where it w7-as run, the patent course must, as a matter of necessity and of law, be. deemed the boundary. 2. When a lino was actually run, it must be, as so run, the true boundary. 3. Whcther a line had been so run, and where it was run, aro facts to be proved by witnesses, and ascertained by a jury, and are not mere deductions of law.
Tested by these criteria, the instruction we are considering cannot be maintained ; for, if there was no testimony tending to shew that the entire line was actually run by the original surveyor, or where it w7as run, the course called for in the patent was the true and only constructive boundary ; and if the proof, in any degree, tended to shew that the whole line had been run, whether it was so run, and where, were facts which the jury, and not the court, should have decided.
Nor does the opinion in 4 Monroe (supra) even intimate that, whether the line partially identified by marks had been actually extended its whole length, and how it had been extertdéd, were questions of law, or of construction to be settled by the court, and not pure matters of fact, for the consideration of the jury. All that was decided in that case, so far as it can bear on this, wasdhat the facts authorized the verdict, and that, of course, it was according to law. But the circuit court did not in that case, as in this, instruct the jury how to extend the line; and that case, properly considered, is rather an authority against the right to give such an instruction, and tends to shew that a jury may, in such a case, decide whether the whole line was run, and where it was run.
Nothing but the actual running of a line variant from the patent course and distance, can give any other boun-^ clary than that defined by the calls of the patent. Whether a line was actually run, and hoiv and where, are evidently matters of fact, and not deductions of law ; and, policy and law certainly require that the patent calls' should define the boundary, unless there be strong and satisfactory evidence shewing that an actual survey was made varying from those calls.
In this case, the court had no right to say that, because a part of a line was identified by actual marks, the whole line had been actually marked or traced by the original surveyor. Nor had it a right to decide, as a deduction of law, that, if the entire line had been marked, it was elongated in the general course of so much of the line as could still, be identified by the actual marks. The proof might be such as to justify the inference, as a matter of fact, that the entire line had been run and marked; and even, also, to allow the like inference that the whole line, as run, corresponded, in all its parts, in its deflection from the patent course ; but whether there was such a completion of the actual line, or such a uniformity of departure throughout the whole length of the line, would be more or less probable according to the facts proved. Is the line w'ell marked from the corner to the cleared ground ? Then it may be probable, especially if other lines are marked, that the whole of this line was originally marked. But otherwise such probability would be greatly diminished, perhaps altogether destroyed. What proportion in
As the proofs are not all exhibited in this record, this court could not decide whether they would have sustained the verdict had the jury been untrammelled by instructions ; nor would it be proper to decide that point, even had the record presented all the evidence, because, whatever the facts may have been, as the jury was not left free to decide for themselves on the effect of the proof, the judgment must be reversed, and the cause remanded for a new trial.