13 Gratt. 527 | Va. | 1856
Upon the trial of this ejectment, the controversy turned upon the construction of the description of the land contained in the grant under which the lessor of the defendant in error claimed. That grant is dated in 1803; the grant under which the plaintiff in error claimed, bears date on the 1st of March 1831. This action was commenced in 1839. If, therefore, the descriptive calls of the grant to the person under whom the defendant in error claims, embrace the land in controversy, judgment was properly rendered in his favor.
The grant to Moses Shepherd for one thousand four hundred and forty-one acres, under which the defendant in error claims, after setting out several lines and corners about which there was no dispute, and all of
The defendant in error contends, that the true boundary of Shepherd’s grant was the line of McCoy’s grant, for the whole of which he called, and from the termination of the line, the correct boundary is to be ascertained by running nearly at right angles with McCoy’s liue to the first corner of McConnell at I, and continuing on the course called for with McConnell’s line from I to K.
It is not controverted in argument, that where notorious land marks, as corner trees or natural objects, are called for, they are to be regarded as termini, and a straight line is to be run from one terminus to the other, without respect to course or distance. The case of Smith v. Davis, 4 Gratt. 50, recognizes this as a general rule. But though this be the true rule where no other call is found in the grant but the call to run from one terminus to another, there certainly may be other calls which show the line was not intended to be a straight line; as where a call is to run with a river or a public road from one terminus to another, the stream or road, if it leads to the other terminus, must be followed, though it may diverge from a direct line between the two points. The same rule would apply to a marked line, if there was enough to show that such line, though not a direct line, was intended as the boundary; provided by following the marked line the other terminus can be reached. The difficulty in this case grows out of the fact that by following the line of McCoy’s grant from the corner at Gr to the end thereof, as called for in Shepherd’s grant, though a
The land law, 1 Rev. Code 1819, p. 328, § 30, provides that the surveyor, at the time of making a survey, shall leave no open lines, but shall see the same plainly bounded by marked trees, except where a water course or ancient marked line shall be the boundary. It thus appears that the law regards an ancient marked line as sufficiently notorious to dispense with any further survey. It does not appear that the line of McCoy was marked. The corners, however, are found at each end, proving that it was actually run and probably marked ; and it is admitted to be McCoy’s line, and both parties call for it at the place designated in the plat. It is clear that McCoy’s survey was before Shepherd when his survey was made; and from calling for the cornel's at each end of the line, the reasonable presumption is that he knew where the line was, and intended to call for it as his northern boundary in this portion of the survey. McCoy’s line terminated at a white oak corner; and he called for a white oak, but by mistake supposing McConnell to corner on the same tree, and intending to run with two of his lines, he called for it as McConnell’s corner. There is no mistake as to the object called for, a white oak, or as to the position of the white oak at the termination of McCoy’s line. I think the object so called for must, in legal construction, be regarded as one of the land marks to which the party has a right to go, although he was mistaken in supposing it to be the corner of McConnell’s survey. The line called for was called for as the boundary, and the object at which it terminates limits its extent in that direction. It shows the distance to which the boun
The court was of opinion that there were manifest and strong reasons for believing that the line called for was well known to the parties : And so believing, determined that the call for the terminus should not overrule the rest of the description. It is equally manifest from the calls of this grant, that the locator here knew that the waste land he was appropriating was bounded in part by older surveys; that he knew the general position of these surveys and where the lines run; that the surveys were before him, and that he intended to adopt and did adopt the lines of such surveys where called for, precisely as they had been run originally, and to make them the boundaries of his survey. And these things being so, it seems to me the call for McCoy’s line cannot be rejected. I think therefore that the judgment of the Circuit court should be affirmed.
The other judges concurred.
Judgment affirmed.