25 Ill. 163 | Ill. | 1860
There would seem to be no question that the plaintiff took by his deed the whole of the premises described, except that which had been previously conveyed to the railroad company. The description in the deed to the railroad company is this : “ A strip of land, seventy (70) feet in width, through and across the following described tract of land, lying in the county of-, and State of Illinois, that is to say : northwest quarter of north-east quarter of section five, township eight north, and range five west of the third principal meridian, commencing at the north-west' corner of said tract of land, and running east on the township line eighty rods ; thence south, seventy feet; thence west, eighty rods ; thence north, seventy feet, to the place of beginning; the said strip of land, seventy feet in width, being the same on which the said party of the second part have surveyed and located, and are about to construct their aforesaid railroad, and being fifty feet in width on each side of the centre line of said railroad, as the same has been surveyed and located, the improvements and appurtenances to the same belonging all to be excepted.” Now here are two descriptions, which may or may not be consistent with each other. One description is by courses and distances, thereby bounding the premises to be conveyed. The other is by reference to the actual survey and location of the railroad. The plaintiff proved that the railroad was actually located nineteen rods and five links south of the north line of the quarter, which was a section line, thus showing that the two descriptions were of different pieces of land. And the question is, which description shall control? As before stated, there can be no doubt that the plaintiff took, and is entitled to hold, all not conveyed to the railroad. If the first description is to prevail, the railroad company did not get the land where they had located and have constructed their road, but that belongs to the plaintiff, and the railroad company own a strip near twenty rods north of their road, and upon the quarter section line. When this survey was made, and deed given, there can be no doubt that all parties were mistaken as to where the northern boundary of the quarter was. Assuming that the surveyor ran the lines upon the ground, when that deed was drawn, can there be any doubt whether he ran them where the railroad now is, or ran round a like piece of land nineteen rods north of it ? The law says, that the land is conveyed, around which the surveyor actually ran the lines, and fixed his monuments. Monuments, tangible things, capable of being identified by witnesses, must always control and supersede courses and distances, which are more liable to be set down in error. No fitter case than the one before us could be desired to illustrate the truth of this proposition. This railroad is itself a palpable continuing monument, showing beyond doubt or cavil what the parties designed should be conveyed, while the evidence ruled out demonstrates that the parties were mistaken as to the real location of the north-east corner of the section, which was supposed to be at the initial point of the survey, when in fact it was not. Shall we then remove that initial point some twenty rods north of where it actually existed, in order to make it conform to a false supposition in the deed ? That would be an attempt to rectify one error by the commission of another. The law requires us to reject the false description, and adhere to the true one. By doing this, we not only follow a well settled rule of law, but carry out the unquestioned intentions of the parties.
This is upon the assumption that the testimony of the surveyor Standring conclusively proved that the section line was north of the railroad; for whatever the testimony fairly tended to prove, we must assume as conclusively established, when deciding upon the admissibility of testimony.
The judgment must be reversed, and the cause remanded.
Judgment reversed.
