Brown v. Huger
62 U.S. 305 (1858)

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U.S. Supreme Court

Brown v. Huger, 62 U.S. 21 How. 305 305 (1858)

Brown v. Huger

2 U.S. (21 How.) 305

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT OF VIRGINIA

Syllabus

Where there had been an original entry for land made in the office of the Lord Proprietor of the Northern Neck of Virginia, a survey ordered upon that entry, and actually made and returned, and a patent adopting that survey and founded thereupon, was issued by the Lord Proprietor to a grantee differing in name from the maker of the original entry, these circumstances constitute no ground for vacating or impeaching the legal title vested by the patent.

Page 62 U. S. 306

The construction of the patent is the proper duty of the court, and not of the jury.

It is a universal rule that wherever natural or permanent objects are embraced in the calls of a patent or survey, these have absolute control, and both course and distance must yield to their influence.

Hence, where a survey and patent call for a boundary to run down a river to its point of junction with another, thence up that other, the rivers are obviously intended as the boundaries and courses must be disregarded, especially when it is manifest that one of them has been interpolated through error.

The authorities referred to.

The facts are stated in the opinion of the court.

Page 62 U. S. 308

MR. JUSTICE DANIEL delivered the opinion of the Court.

This was an action of ejectment instituted by the plaintiffs in error against the defendant in the Circuit Court of the County of Jefferson in the State of Virginia.

The locus in quo being held and occupied by the defendant as an officer of the United States, and in virtue of their right and authority, the suit was, under the act of Congress of 1789, removed upon petition to the Circuit Court of the United States for the Western District of Virginia, within which district the property in dispute is situated. The claim of the plaintiffs is founded on a patent from the lieutenant governor of Virginia, granted to Jacob Brown and Jacob Nisswaner, dated July 29, 1851, and granted in virtue of a land office Treasury warrant for the location of waste and unappropriated lands. This patent, according to the various courses and distances

Page 62 U. S. 309

therein set forth, purports to grant the quantity of thirty-nine acres and two roods. Beckham, Unseld, and Moler, three of the plaintiffs, derived their title directly from the patentees above named, as was shown by conveyances from the latter, which were read in evidence. The plaintiffs also introduced a survey plot and report made by A. Trotter, surveyor, in pursuance of an order of court in this cause, and relied upon the same, with other evidence, to show that the land granted by the patent of 1851 was correctly laid down and described in the survey, and that the defendant was in the possession of the land claimed at the commencement of the plaintiff's action.

The defendant, holding the premises as the agent and under the authority of the United States, defended the right to the possession, as held by him, upon the following proofs, being certified copies from the records of the land office of the State of Virginia, by S. A. Parker, the register of that office. 1st. An entry in the office of the Lord Proprietor of the Northern Neck of the State of Virginia, within which portion of the state the land in contest is situated, in the following words, viz.,

"1750, April 4. Surveyed. James Nickols, of Frederick County, Virginia, entered about two hundred acres of waste and ungranted land at the mouth of the Shenandoah River."

And an order from Lord Fairfax to Guy Broadwater, in the words and figures following, viz.,

"To Mr. Guy Broadwater:"

"Whereas James Nickols hath informed that there are about two hundred acres of waste and ungranted land where he now lives, and desiring a warrant to survey ye same, in order to obtain a deed, being ready to pay ye composition and office charges. These are therefore to empower you, ye said _____, to survey ye said waste land, provided this be ye first warrant that hath issued for ye land; and you are to make a just and accurate survey thereof, describing the course and distance per pole; also ye cuttings and boundings of the several persons' lands adjoining; and where you cannot join to any known lines, you are to make ye breadth of ye tract to bear at least

Page 62 U. S. 310

ye proportion of one-third of ye length, as ye law of Virginia directs; you are also to insert ye name of ye pilote and chain carryers made use of and employed; a plat of which said survey, with this warrant, you are to give into this office any time before ___ day of _____, next ensuing. Given under my hand and seal of ye proprietor's office, this ___ day of _____, in ye twenty _____ year of his majesty King George ye second reign."

"FAIRFAX"

2d. And a plat and certificate of survey by said Broadwater, in the words and figures following, viz.,

"By virtue of a warrant from ye proprietor's office, dated the 4th of April, 1750, granted to James Nickols one certain parcel or tract of land situated and lying in Frederick County: beginning at A, a sickamore standing upon ye edge of Shenandoah, extending down ye said river S. 55 E. 44 poles to B; thence N. 66 E. 72 poles to C, a sickamore standing upon ye pitch of ye point of Shenandoah; thence up Potomac N. 48 W. 200 poles to D, a chestnutt tree standing near Potomac River, side oppositt to a small isleland; thence west 105 poles to E, a white oak; thence S. 140 poles to F, a red oak; thence east 150 poles to ye beginning, containing 125 acres, surveyed by me."

"GUY BROADWATER"

"JOSEPH CANTNELL"

"JOSEPH NICKOLS Chain-carriers"

"Endorsed: Deed issued 25th April, 1751"

An official certificate from S. H. Parker, Register of the Virginia Land Office, dated Richmond, June 27th, 1854, in the following words:

"I, S. H. Parker, Register of the Land Office of Virginia, do hereby certify that it does not appear that any grant has been issued on the survey made by James Nickols for 125 acres of land in Frederick County to any person except Robert Harper, to whom a grant issued on the 25th day of April, 1751, which date agrees with the date on Nickols' survey. And I further certify that I can find no survey of Robert Harper for 125 acres on file in this office. "

Page 62 U. S. 311

3d. A grant from the Lord Proprietor of the Northern Neck, in the following words:

"The Right Honorable Thomas Lord Fairfax, Baron of Cameron, in that part of Great Britain called Scotland, proprietor of the Northern Neck of Virginia:"

To all to whom this present writing shall come, sends greeting:

"Know ye that for good causes, for and in consideration of the composition to me paid, and for the annual rent hereafter received, I have given, granted, and confirmed, and by these presents, for me, my heirs and assigns, do give, grant, and confirm unto Robert Harper, of the County of Frederick, a certain tract of waste and ungranted lands in the said county, at the mouth of Shenandoah River, and is bounded as by a survey thereof made by Guy Broadwater, as followeth: beginning at a sycamore standing on the edge of Shenandoah river, and extending thence down the said river N. 48

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