Where plats are returned and grants made without an actual
survey, the rule of construction which has been adopted in order to
settle the conflicting claims of different parties is that the most
material and most certain calls shall control those which are less
material and less certain.
A call for a natural object, as a river, a known stream, a
spring, or even a marked line shall control both course and
distance.
There is no distinction between a call to stop at a river and a
call to cross a river.
Where a grant was made for five thousand acres of land
"lying on both sides of the two main forks of Duck River,
beginning, . . . and running thence west eight hundred and
ninety-four poles to a white oak, thence south eight hundred and
ninety-four poles to a stake crossing the river, thence east eight
hundred and ninety-four poles to a stake, thence north eight
hundred and ninety-four poles to the beginning, crossing the south
fork,"
it was
held that it must be surveyed so as to extend
the second line of the grant such a distance on the course called
for as would cross Duck River to the opposite bank.
Page 20 U. S. 8
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a judgment given in the Circuit Court
for the District of West Tennessee in an ejectment brought by the
defendants in error against the present plaintiff. The plaintiffs
in the court below claimed under the elder patent, to the validity
of which there was no objection. Of consequence, the only question
in the cause was whether the lines of their grant comprehended the
land in contest. The grant was made for 5,000 acres of land,
"lying or both sides of the two main forks of Duck River, be
inning, &c., and running thence west 894 poles, to a white oak
tree; south 894 poles to a stake crossing the river; thence east
894 poles to a stake; thence north 894 poles to the beginning,
crossing the south fork."
It is apparent that a survey was not made in fact, but that,
after marking a beginning corner, the surveyor made out and
returned a plat, which he supposed would comprehend the land
intended to be acquired. It is now too late to question the
validity of grants made on such plats and certificates of survey.
From the extraordinary circumstances of the country, they were
frequent, and, in consequence of those circumstances, have received
the sanction of
Page 20 U. S. 9
courts. An immense number of titles, believed to be perfectly
secure, depend upon the maintenance of such grants. The extent of
the mischief which would result from unsettling the principle
cannot be perceived, and is certainly too great now to be
encountered. The patent therefore must be considered as if the
survey had been actually made.
In consequence of returning plats where no actual surveys had
been made and where the country had been very imperfectly explored,
the description contained in the patent often varies materially
from the actual appearances of the land intended to be acquired.
Natural objects are called for in places where they are not to be
found, and the same objects are found where the surveyor did not
suppose them to be. In a country of a tolerably regular surface, no
considerable inconvenience will result from this circumstance. The
course and distance of the patent will satisfy the person claiming
under it, and seldom interfere with the rights of others. But in a
country where we find considerable watercourses and mountains there
must be more difficulty. The surveyor calls for some known object,
but totally miscalculates its courses, distances, or both, from
some given point which he has made the beginning of his survey, and
there is a variance in the different calls of his survey, and of
the patent founded on it. As in this case, the second line is to
run south 894 poles to a stake, crossing the river. This distance
will not reach the river; and must be continued to 1,222 poles to
cross the river. The distance must be disregarded, and this line so
extended
Page 20 U. S. 10
as to cross the river, or the distance must control the call for
crossing the river.
These difficulties have occurred frequently, and must be
expected to occur frequently where grants are made without an
actual survey. Some general rule of construction must be adopted,
and that rule must be observed, or the conflicting claims of
individuals must remain forever uncertain.
The courts of Tennessee and all other courts by whom causes of
this description have been decided have adopted the same principle,
and have adhered to it. It is that the most material and most
certain calls shall control those which are less material and less
certain. A call for a natural object, as a river, a known stream, a
spring, or even a marked tree, shall control both course and
distance. These decisions are founded on two considerations.
Generally speaking it is the particular intention of the purchaser
to acquire the land lying on the stream called for, as being more
valuable than other land, and in every case where a natural object
is mentioned, it designates the land surveyed had there been an
actual survey, much more certainly than course and distance can
designate it. In this case, for example, the surveyor says that he
has run south 894 poles to a stake crossing the river. Now it is
much more probable that he should err in the distance than in the
fact of crossing the river. The conclusion, therefore, had an
actual survey been made, would be that the line did cross the
river.
The general effect of this principle undoubtedly is that the
purchaser acquires more land than is expressed
Page 20 U. S. 11
in his grant, and more than he has paid for. Where this has been
thought an object worthy of legislative attention, provision has
been made for it. Courts cannot now shake a principle so long
settled and so generally acknowledged.
In this case, the counsel for the defendant in the court below
seems to have admitted the rule, but to deny its application to
this case. He founds his application to the court on a supposed
distinction between a call to stop at a river, and a call to cross
a river. After stating the testimony,
"he required the judges to instruct the jury that if they
believed there was no testimony to prove the making of any other
corner than the beginning corner, the correct mode of running the
said grant would be to go the course and distance from the
beginning corner, which would form the termination of the first
line, and run from thence the course and distance called for in the
second line, and if the course and distance will not reach across
the river, that the call in the grant for crossing the river ought
to be considered as a mistake in the surveyor and be rejected, and
the second line should terminate at the end of the distance, and
from thence run the third line according to the course and
distance, and from thence to the beginning. And the said counsel
requested the judges to instruct the jury that such call as is in
this grant, for a line to pass a river or other object, will be
different in principle from what it would be if said call had been
for said river, at the termination of the line or boundary, and
although in the latter case the law is that such natural object
shall be the
Page 20 U. S. 12
boundary, disregarding distance, yet, in the present case, the
distance shall be the criterion of boundary, disregarding the call
for crossing the river."
The judges refused to give this instruction, and charged the
jury "that the second line of the said grant must be extended such
a distance on the course called for as will cross Duck River to the
opposite bank."
To this opinion an exception was taken, and the jury having
found a verdict for the plaintiff in ejectment, the defendant in
the circuit court has brought the cause into this Court by writ of
error.
We can perceive no sound reason for the distinction between a
call for a river at the end of a line and for a river in the course
of a line. There is as much reason in the one case for supposing
the surveyor intended the line should cross the river, or, in case
of actual survey, for supposing he did cross the river, as in the
other for supposing an intention to stop at the river, or an actual
termination of the line at the river.
Whether the motives for the call were that the acquisition of
the land on the river was an object with the purchaser, or that the
call for the river conduced more certainly to the designation of
the land intended to be acquired, the motives for considering it as
the controlling call in the patent, to which distance must be
subordinate, seem to be precisely the same whether the call be to
cross the river or to terminate at it.
It has been urged as an objection to the mode of surveying the
land directed by the court, that the
Page 20 U. S. 13
last line will not cross the south fork, and that the land will
not be "on both sides of the two main forks of Duck River."
But this objection will not be removed or diminished by the
instruction required by the plaintiff in error. Nor can the land be
so surveyed as that the last line shall cross the south fork. From
the termination of the third line, it is necessary to proceed to
the beginning, and the plat shows us that the south fork does not
run between the two points. It cannot be brought between them, if
at all, without extending the third line an immense distance, and
changing the whole figure of the plat, or entirely disregarding the
act of assembly, which directs lands to be taken up by lines
running with the cardinal points, except in particular cases, of
which this is not one.
Judgment affirmed with costs.