4 Ala. 576 | Ala. | 1843
The question arising upon the prayer of the plaintiff for instructions to the jury is, whether the mouth of the branch traced on the map, which accompanies the Spanish and American surveys in question, is the true point of beginning, in order to ascertain the precise tract of land embraced by them.
It is true, that where a map is referred to in a grant or deed as indicating what is intended to be conveyed, it is regarded as a part of the conveyance, and may be referred to for the purpose of aiding in the identification of the land, showing its form, location, &c. Yet it can rarely, if ever, happen that it will bo drawn with so much exactness as to show, without the aid of parol proof, at what precise point corners and lines are placed and marked. The identical monument or boundary referred to in a conveyance, is always subject to parol evidence; and when disputed, it must be left to a jury to say which was intended. [Claremont v. Carlton, 2 N. Hamp. 373; Blake v. Doherty, 5 Wheat. Rep. 359; Linscott v. Fernald, 5 Greenl. Rep. 496; Wing v. Burgis, 13 Maine Rep. 111; Waterman v. Johnson, 13 Pick, Rep. 267.] In the last case cited the deed described land as bounded on a poud, designated by name; it appeared that it was a natural pond, which was raised more or less at different times, by means of a dam existing and in use at the time of the conveyance, so that there was a latent ambiguity. The Court held, that parol evidence was admissible to show, that a certain line was agreed on, and understood at the time of the conveyance as the boundary of the pond.
It has been held, that natural or artificial monuments control the plan ofsurvey referred to in a deed, [Esmond v. Tarbox, 7 Greenl. Rep. 61;] and they also as a general rule are considered to furnish more certain means of discovering the' land conveyed than courses and distances. [Davis v. Rainsford, 17 Mass. Rep. 207; Wendell v. The People, 8 Wend. Rep. 183; Preston’s Heirs v. Bowmar, 6 Wheat. Rep. 580.] In Jackson v. Moore, [6 Cowen’s Rep. 717,] the Court say, “What is most material and most certain in a description, shall prevail over that which is less material and less certain. Thus, course and distance shall yield to natural and ascertained objects; as a river, a stream, a spring or a marked tree.” [1
In Jackson v. Wilkinson. [17 Johns. Rep. 156,] it was determined, that where the place of beginning a survey is fixed and certain, the litte must be run from that point, according to the courses and distances, in order to ascertain the precise position of a tract of land. [See also Wendell v. The People, 8 Wend. Rep 183.]
When a line is actually run, it is said that it will, as traced, constitute the true boundary. “ But whether the line was ever actually run or marked, and if it were so designated, where it was, are not deductions of law or matters of construction, but are facts to be ascertained and settled by a jury, and a Court should not, by construction, fix the line, if there1 be auy proof whatever tending legitimately to show, that it was actually run, and where.” [Dimmitt v. Loshbrook, 2 Dana’s Rep. 1.]
The charge prayed assumed as a legal conclusion that the letter A. as marked on the map, was intended to designate the mouth of the branch, from the fact that they seemed to be placed at the same point. None of the papers made by the Spanish authorities for the purpose of conferring a title on the grantees, make any reference in terms to the branch; they speak of the Bay of Mobile being the eastern boundary of the tract, refer to the map, and A. as the point where the survey begins. Now it seems to us that it would be a most un wart anta ble assumption, to hold that the place intended by A. is identical with the mouth of the branch, merely because of their apparent proximity upon paper. But suppose the Spanish concession in totidem verbis had recognized the mouth of the branch, as the north-east corner of the tract at the time it was surveyed would it not be admissible to show, that owing to alluvial de
The plaintiff’s counsel is mistaken in supposing that the survey made under the authority of the United States, places the north east corner at the mouth of the branch. It is expressly stated in the return made to the surveyor, and approved by him, that that corner is “ forty links east of the mouth of a bayou, as indicated by the grant,” &c.
The prayer of the plaintiff, as the case is presented by the bill of exceptions, appears to have been for an entire charge, though it embraces several distinct propositions; and as’it mistook the law in one very important particular, it was not error to overrule it in toto. To escape the consequences of a sweeping decision against him, it is most advisable for counsel to move instructions upon each point separately; the Court is not bound to distinguish what is proper from what is improper. This point has been repeatedly adjudged, both by this and other Courts.
The charge given laid down the law correctly. ,It assumes what the facts show to be true, that the controversy was in relation to boundaries, and that the jury were to inquire whether the land in controversy was covered by thegrant and patent certificate which were given in evidence. That they should, if practicable, ascertain from the evidence the lines of the land covered by the plaintiff’s claim, as they were run and marked on the ground ; if these could be ascertained, the land within them was the plaintiff’s without regard to quantity or the beginning or conclusion of the lines. But if the lines could not be ascertained as originally run and marked, then they must find the beginning, and run out the land according to courses
From the view taken it results that the judgment of the Circuit Court is free from error, and it is consequently affirmed.
