39 Ky. 338 | Ky. Ct. App. | 1840
delivered the Opinion of the Court.
This was an action of trespass, quare clausum, fregit, brought by M’Clurg against Ralston. And upon the case as submitted to the Circuit Judge for his decision, on the law and fact—the only question arising is one of boundary, the ascertainment of which seems to have been the only object of the parties.
The question arises on the survey of Joseph Ham, under whose patent the plaintiff in the action claims title, The boundaries of the survey, as stated in the patent are as follows: — beginning at William Richards’ north east corner of his fifty acre survey, a large poplar and beech; thence north 58° west, 26 poles to a beech; thence north west, 75° poles to a beech and buckeye; thence south 20° west, crossing Tygert’s creek at 18 poles, in all 120 pole's, to three white oaks on a high ridge; thence south 45° east 83 poles, to a stake in Richards’ line; thence north, 12° east, with his line, 156 poles, to the beginning.
It appears that in making Ham's the survey, surveyor commenced at the north west, and not at the north east corner Richards, as stated in the patent; which throws the whole survey off of the land described in the patent. From the north west corner of Richards’ survey, the three first lines of Ham’s were actually run and marked, but on arriving at the end of the third line, the surveyor was stopped by Ham, who informed him that a line south 45°
On running out Ham’s survey, it is found that the course south 45° east, from the termination of the third line actually, run, will not only not strike Richards’ line at the distance of 83 poles, but that, if continued, it passes considerably to the south of Richards’ survey, and will never touch any part of it; and laying down Ham’s survey by the courses and distances called for in the patent, the last line forms an angle of about 27 degrees with the line of Richards, leaving a considerable interval be tween the two surveys; within which, and about midway from the angle to the extremities of the two contiguous lines, the trespass complained of was committed. The line of Richards is, in fact, but ninety poles long, from corner to corner, and runs north 15° west. The fourth line of Ham calls to run to a stake in that line, and the fifth calls to run with it, 156 poles, in the course north 12° east, to the beginning.
The material question is whether Richards’ line must necessarily form a part of Ham’s survey, regardless both of courses and distances as called for in Ham’s patent; or whether the call for that line shall be disregarded, and the courses and distances adhered to. If the fourth line of Ham had been actually run from his fourth corner to a point in Richards’ line, that point, if it could have been identified, must have been the fifth corner, whatever might have been the course or length of the line leading to it, and Richards’ line must, consequently, have been the closing line of the survey, however misdescribed.
But this is not a question of tracing an actual boundary, or of discovering a lost one, or one which may be presumed to have been completed; but of constructing a survey by adding two lines which were never actually
From this comparison, it is apparent that the surveyor was ignorant of the position, the length and the course of Richards’ line. Having arrived at the fourth corner of the survey which he was making, and intending, as must be presumed, to include about the proper quantity of fifty acres, he calls for such courses and distances of the two remaining lines, as will, if run out, accomplish that object. But he calls, also, for the fourth line to run to the line of Richards, of which he knew nothing. Did he pall for the.t line, because he intended to reach it, regardless of course, distance, figure and quantity? or did he call for it merely because he supposed it would be found in the course and at the distance named, and that, following it thence to the beginning, the quantity would be included, and the designated figure made out? It cannot be supposed that he was absolutely certain that Richards’ line would be reached by the course and distance called for, or that it would be reached by that course at any distance. He must then have been sensible that, if the call for that line was to be a controlling call, he was leaving the course and distance of' the fourth and fifth lines, and the shape, if not the quantity, of the entire survey, in utter uncertainty. And, as if to show that he did not place implicit faith in, the information that Richards’ line would be found in the direction, and at the distance called for, he provides the means of closing the survey with out the aid of that line, by giving the course and distance from the termination of the fourth line of Ham, which he supposed would be in Richards’ line, and the course and distance thence to' the beginning. If he had relied implicitly on this supposition, or if he had regarded Richards’ line as an essential part of the boundary of Flam’s survey: if he had not, in fact, considered it somewhat uncertain whether the line south 45° east would reach the line of Richards at the distance called for, and if he had
As the survey of Ham, according to our construction of it, would not include the place where the alleged trespass was committed, the plaintiff had no right to recover upon the facts submitted to the Judge.
The only remaining mode of construction would be, to run to the southern extremity of Richards’ line, so as to give the greatest possible distance on that line, which would still be shorter than the distance called for. But it is unnecessary to determine between these various modes in which the survey might be constructed, if the call for the stake in Richards’ line, and thence to the beginning, should be regarded as the controlling calls. The conclusion at which we have arrived, upon the opposite hypothesis, is strengthened by the uncertainty which would ensue from its rejection, and it decides the case.
Wherefore, the judgment is reversed, and the cause is remanded, for a new trial, in conformity with the principles of this opinion.