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� W., 200 N. 66 E., seventy-two poles to a sycamore standing
at the point, and thence up Potomack river N. 48� W., two hundred
poles to a chestnut tree standing near Potomack, opposite to a
small island; thence W. one hundred and five poles to a white oak;
thence south one hundred and forty poles to a red oak; thence east
one hundred and fifty poles to the beginning, containing one
hundred and twenty-five acres, together with all rights, members,
and appurtenances thereunto belonging, royal mines excepted, and a
full third part of all lead, copper, tin, coals, iron mines, and
iron ore, that shall be found thereon:"
"To have and to hold the said one hundred and twenty-five acres
of land, together with all rights, profits, and benefits to the
same belonging, or in any wise appertaining, except before excepted
to him, the said Robert Harper, his heirs and assigns,
forever."
"Given at my office in the County of Fairfax, within my said
proprietary, under my hand and seal, dated this 25th day of April,
in the 24th year of our Sovereign Lord, George the Second by the
Grace of God, of Great Britain, France, and Ireland, King, defender
of the faith &c., A.D. 1751."
"[Signed] FAIRFAX"
Page 62 U. S. 312
4th. The defendant offered in evidence the last will of Robert
Harper, deceased, the grantee of the Lord Proprietor, with proof of
the probate and recording of that last will in the Court of Berkley
County on the 13th of October, 1782. By the first clause of the
will disposing of his property, the testator devised to his nephew,
Robert Griffith,
"one moiety or half of his ferry survey, to form a straight
direct line to run along the two fences on the east side, or that
side next to the ferry, the one fence lying on the north, and the
other on the south side of the road leading from the ferry to
Winchester, the sides of the above-mentioned fences to be a
director or to show where each end of the division line shall
terminate. The end of the line leading to the Potomac to terminate
as soon as it strikes that river; the end leading to Shenandoah to
keep a straight line till it likewise strikes said river, and to
contain and include the island opposite where the said line
strikes; then to run in my said Harper's line, adjoining Sample's
line, to continue with said line and to include ninety acres of a
new survey; thence to continue its course till where the dividing
line shall strike the Potomac River, including therewith the
sawmill and grist-mill of the testator."
By the survey and report of Trotter, this line, denominated
"Sample's line," is one of the courses delineated upon the survey
as a boundary to a tract of land conveyed by one Gershom Keys to
John Sample, on the 9th of June, 1763, and this line is its
southern termination, runs to the margin of the Shenandoah River,
and near to Harper's house, as delineated on the plat, and to the
grist and sawmill situated upon that river.
By the next disposition in his will, the testator devised to his
niece, Sarah Harper, his ferry and ferry house on Potomac River,
and all the remainder of his ferry survey not before devised to
Robert Griffith, and all his estate in and right and title to the
Maryland shore of the said ferry, and to ten acres of land upon
what is called the Big Island in the Potomac River adjoining the
ferry aforesaid.
The defendant also gave in evidence the plat and report of
survey made as aforesaid in this case by Trotter, and evidence
tending to prove that the beginning corner of Harper's patent
Page 62 U. S. 313
was actually on the bank of the Shenandoah River, as at A on the
map, and that the third corner of said patent was at or near the
junction of the Shenandoah and Potomac Rivers; and that the next
corner of the patent, at the distance of two hundred poles up the
Potomac River, was near the bank of said river at the point G or 18
on the plat, and that the general course of the said two rivers was
as laid down in the said plat in relation to the four said first
lines of Harper's patent. Upon a comparison of the survey made by
Broadwater by order of the Lord Proprietor with the copy of the
patent from the land office, there will be perceived this
disagreement between these two documents with regard to the first
call in the location of the land. In the survey as well as in the
patent, the beginning is stated to be at a sycamore tree
standing on the edge of Shenandoah River, and extending
thence down the river to a sycamore standing, says the patent, at
the point, and according to the survey, at
the pitch of the
point of Shenandoah, thence up the Potomac &c. But whilst
the first course in the survey in approaching the point or the
junction of the two rivers is S.E., the same course is represented
in the grant as running N.W. This is a manifest error on the face
of the grant, as the geographical knowledge of everyone compels him
to know that the rivers Potomac and Shenandoah, in approaching each
other, run in a south and east direction, and therefore, if this
course in the grant ran northwest from the point of beginning, it
would diverge more and more at every step from the Potomac and
could never reach the latter river. To correct this manifest error,
if indeed proof could be necessary in aid of the geography of the
country or of the sensible meaning of the patent itself, the
defendant offered evidence to show that the original parchment
patent had been lost, and further proof to show that this original
parchment patent was in the years 1825 and 1827 in possession of
Mrs. Catharine Wager, widow of John Wager, Jr., deceased, who was
son of John Wager, Sr., who was the husband of Sarah Harper, the
devisee of Robert Harper, the original patentee. He further offered
proof that the courses and distances had been copied from said
original in the years 1825 and 1827, respectively, by the Deputy
Surveyor
Page 62 U. S. 314
of Jefferson County, where the lands lie, for the purpose of
survey, and were used by him in a survey of the tract patented as
aforesaid to Robert Harper, between the Wagers, who claimed under
the said Robert Harper, and the United States, and offered further
proof that the said courses and distances had in 1816 or 1818 been
copied from the same original patent by John Peacher, a witness in
this cause, then the owner of land binding on the lines of Harper's
patent, a copy of which courses and distances is as follows,
viz.,
"Beginning at a sycamore standing on the edge of the Shenandoah
River, and extending thence down the said river S. 55 E. 44 poles,
N. 66 E. 72 poles to a sycamore standing on the point; and thence
up Potomac River N. 48 W. 200 poles to a chestnut tree standing
near the Potomac, opposite a small island; thence W. 105 poles to a
white oak, S. 140 poles to a red oak; thence E. 150 poles to the
beginning."
The defendant then deduced title through conveyances from the
devisees of Robert Harper to George Washington, President of the
United States, and his successors, on behalf of the United States.
One of those conveyances, bearing date on the 15th of June, 1796,
from John Wager the elder, the husband, and John Wager, Margaret
Wager, and Mary Wager, children of Sarah Harper, describing the
land conveyed as
"all that piece of land situated in the County of Berkley
commonly known as the Harper's Ferry land, which was devised by the
will of Robert Harper, bearing date on or about the 26th day of
September, 1782, to his niece, Sarah Harper, and is bounded by the
River Potomac on the outside, by the River Shenandoah on the other
side, and by the line dividing it from the tract or parcel of land
devised by the said Robert Harper to Robert Griffith on the other
side."
And in the conveyance from Robert Griffith, the devisee of
Harper, dated on the 9th day of January, 1797, to Thomas Rutherford
and others, the grantors of another portion of this land to George
Washington for the United States, it is recited,
"That whereas Robert Harper, late of the County of Berkley and
Commonwealth of Virginia, was in his lifetime seized in fee of and
in one certain tract of land situate lying and being at the
confluence of the Potomac
Page 62 U. S. 315
and Shenandoah Rivers, in the County of Berkley, containing one
hundred and twenty-five acres, for which he obtained a deed from
the proprietor &c., and, being so seized, did by his last will
devise unto his nephew, Robert Griffith the elder, one equal moiety
or half of the above-described one hundred and twenty-five acres of
land, comprehending a saw mill thereon, and an island in the
Shenandoah opposite thereto."
The defendant further proved that the United States had, between
the years 1796 and 1800, erected and established on the land in
controversy the necessary buildings for an armory and arsenal for
the manufacture and repair of arms, and had held and occupied and
used, for the purposes aforesaid, the land and buildings, from the
years above mentioned to the present time. That the defendant is an
officer in the military service of the United States, attached to
the Ordnance department, and as such was in charge and in
possession of the land in controversy, with the buildings thereon,
and the armory of the United States at Harper's Ferry, under an
order from the Ordnance department, and that the lands aforesaid
had been in the like charge of his predecessors, under orders and
appointments from the Ordnance Office or War department of the
United States, from May, 1829, to the period when the defendant
took possession, and that prior to the year 1829, as far back as
the year 1800, the said lands and buildings were in like charge of
other persons in the service of the United States at said
armory.
Such being the state of the evidence, the defendant moved the
court to give the jury the following instructions,
viz.,
"That the patent to Robert Harper, having its beginning corner
on the Shenandoah River, and calling to extend thence down the
river, by course and distance, to the point where it appears, from
the survey made in this cause, the River Shenandoah unites with the
Potomac, and from that point up the River Potomac by course and
distance to a corner near the last-named river opposite to a small
island. In construction of law, the two rivers are thereby made the
boundaries of said patent from said beginning on the Shenandoah to
the last-named corner on the Potomac, and if the jury believe
from
Page 62 U. S. 316
the evidence that the lands claimed by the plaintiffs lay along
the Rivers Shenandoah and Potomac, within the lines of the patent
to Robert Harper, extended as aforesaid to the two rivers, they
must find for the defendant -- the patent under which the plaintiff
claims being junior to that of Harper's, under which the defendant
claims -- unless the plaintiffs should establish a title to the
lands in controversy other than through their said patent."
On the same state of the evidence, the plaintiffs also moved the
court to instruct the jury as follows:
"That the question as to how the survey on which this patent of
Robert Harper was issued was actually run is in this case a
question of fact for the jury, and if the jury believe that the
line from the sycamore, at the point of confluence of the
Shenandoah and Potomac Rivers to the chestnut tree, was actually
run a straight line, then that straight line is the boundary of
Robert Harper's patent. But the court gave the instruction asked
for by the defendant, and refused to give the instruction asked for
by the plaintiffs, to which opinions and action of the court --
giving the defendant's instruction and refusing the plaintiffs'
instruction -- the plaintiffs by counsel except, and their
exceptions are here sealed by the court."
"JOHN W. BROCKENBROUGH [SEAL]"
The correctness or incorrectness of the decision of the circuit
court in granting the prayer of the defendant and in refusing that
presented by the plaintiff is the subject of inquiry in this
case.
A striking peculiarity distinguishing this case is perceived in
the fact that it discloses an effort, by means obtained at a cost
comparatively nominal, to disturb and to destroy a possession of
more than half a century in duration -- a possession connected with
public interests of primary magnitude; a possession acquired in
return for a full and fair equivalent given, and of a notoriety as
extensive as the limits of the nation.
Although the immunity created by lapse of time may not have been
directly interposed for its protection, yet such an immunity as
necessarily disclosed by the evidence adduced on
Page 62 U. S. 317
both sides of this controversy, certainly does not commend the
pretensions of the plaintiffs upon considerations of either justice
or policy. But beyond such general considerations, though in strict
accordance with them, let us inquire whether, upon principles
established and mandatory, and inseparable from the maintenance of
social order and quiet, and of private right, this attempt of the
plaintiffs should not be repelled.
The exceptions taken by the plaintiffs in error to the
instructions of the circuit court, and alleged as causes of error
here, are stated as follows:
1st. That the court withdrew from the jury all questions
touching the proof of the patent and the particular boundaries
thereof, though the defendant's case consisted in showing the
boundaries in the only copy of the patent produced to be erroneous,
and the patent to have issued irregularly, and without a precedent
survey for the patentee.
2d. That the court withdrew from the jury the question whether
the 4th point of the survey of the defendant's patent, being in
fact near and not on the river, was, under all the circumstances of
the survey, ON or only NEAR the river, or whether the river of the
right lines mentioned in the patent were the true boundary.
In examining this first objection and the foundation on which it
is made, it appears that the original entry for the land in
controversy was in the name of James Nickols; that the order of
survey from the Lord Proprietor to the surveyor, Broadwater, was
for a survey upon that entry, and that the survey made and returned
by Broadwater was upon that entry; but it equally appears that the
patent issued by the Lord Proprietor refers to and adopts the
survey of Broadwater with respect to its own date, the date of the
warrant and the quantity of the land surveyed, and grants the land
so surveyed to Robert Harper. From the records of the land office
of Virginia, comprising the records of the proprietary, it is shown
that on the survey made in the name of James Nickols for 125 acres
of land in Frederick County, a patent was granted by the Lord
Proprietor to Robert Harper on the 25th day of April, 1751, which
date corresponds with that endorsed upon Nickols'
Page 62 U. S. 318
survey. It is not, therefore, perceived upon what ground the
regularity of the proceedings anterior to the patent to Harper, or
the authority to issue it, can be assailed. It does not appear that
any exception to either was taken in the court below, and
therefore, if at any time available, it is not allowable here.
With regard to the second part of this objection -- that which
claims for the jury the construction of the patent -- we remark
that the patent itself must be taken as evidence of its meaning;
that, like other written instruments, it must be interpreted as a
whole, its various provisions be taken as far as practicable in
connection with each other, and the legal deductions drawn
therefrom must be conformable with the scope and purpose of the
entire document. This construction and these deductions we hold to
be within the exclusive province of the court. The patent itself
could not be altered by evidence
aliunde, but proof as to
the existence and character of the objects or subjects to which it
was applicable was regular, and even necessary to give it
effect.
In ascertaining the boundaries of surveys or patents, the
universal rule is this -- that wherever natural or permanent
objects are embraced in the calls of either, these have absolute
control, and both course and distance must yield to their
influence.
Upon recurrence to the survey by Broadwater, from the beginning
at A, a sycamore standing on the edge of Shenandoah, a point
admitted by all the parties to be the beginning in Harper's Ferry
tract, the survey calls for a course extending down the said river
S. 55 E. 44 poles to B; thence N. 66 E. 72 poles to C, a sycamore
standing on the pitch of the point of Shenandoah; thence up Potomac
N. 48 W. 200 poles to D, a chestnut tree standing near Potomac
River
side, opposite a small island; thence W. 105 poles
to E, a white oak; thence S. 140 poles to F, a red oak; thence E.
150 poles to the beginning. The patent from the Lord Proprietor,
granting the land to Harper
at the mouth of the Shenandoah
River, professes to make the grant, and to give the boundaries
of the land and the quantity thereof according to the survey by
Broadwater, and commences the description, as taken from that
survey, as follows: beginning at a sycamore standing on the edge of
Shenandoah River
Page 62 U. S. 319
and extending thence
down the said river. At this point
in the description are interposed the letters and figures (N. 48�
W. 200 N). It is evident that these letters and figures have been
interpolated in this place by an error, perhaps in recording the
patent. This seems to follow from the fact that these letters and
figures, as thus placed, have no sensible meaning. "N. 48� W. 200
N." mean nothing; they point to no object, and neither are they
connected with any distance. Immediately following these letters
and figures are the several descriptive calls of the patent,
corresponding with the courses and distances and objects contained
in the survey which it had referred to and adopted. The fact of
this interpolation is also shown by the circumstance that farther
on in the description, both in the survey and patent, of the
courses and distances bordering on the Potomac, there is given,
commencing at the point or confluence of the two rivers, the course
of N. 48� W. 200 poles to a chestnut tree standing on the Potomac
opposite a small island, which part of the description was
doubtless wrested from its proper position and transferred to
another in which it could convey no intelligible meaning, and from
which it should be expunged as absurd and of no effect. It is
proper here to observe that neither in the survey nor the patent
for the Harper's Ferry tract is there a course, or a distance, or a
station which is inconsistent with or in opposition to a river
boundary, but on either side of that tract facing the river a
riparian or river boundary is obviously intended. Thus at the
Shenandoah, the commencing point is at a tree on the edge of the
river; thence down the river to a point of the Shenandoah, meaning
the river, of course, as there was no other object bearing that
name; at this point in the confluence of the two rivers. Thence the
course is up the Potomac N. 200 poles to a chestnut tree standing,
in the language of the survey,
"near Potomac River side,"
and in that of the patent,
"near Potomac."
The question then propounded by the prayers to the court below
was a question of law arising upon the construction of the two
patents -- the one from the State of Virginia in 1851, the other
from Lord Fairfax in 1750.
If, as is contended by the defendant, the calls in the
patent
Page 62 U. S. 320
to Robert Harper, and in the survey on which it purports to be
founded, extended to the Rivers Shenandoah and Potomac, such a
construction must be conclusive of this controversy; it leaves no
question to be determined by the jury as to the running of any
artificial line; it fully sustains the decision of the circuit
court upon the prayers respectively offered by the parties.
The citation from the treatise by Angell on watercourses fully
declares the rule to be that where a line is described as running
in a certain direction to a river, and thence up or down with the
river, those words imply that the line is to follow the river
according to its meanderings and turnings, and in watercourses not
navigable must be
"ad medium filum aquae." Upon a question
of boundary in the case of
Jackson v. Low, in the 12th of
Johnson's Reports 255, in ejectment, the court, in construing a
provision in a deed in these words: "leading to the creek, and
thence up the same to the southwest corner of a lot,"
&c., said
"There can be no doubt but this lot must follow the creek upon
one of its banks or through the middle. This description can never
be satisfied by a straight line. The terms 'up the same'
necessarily imply that it is to follow the creek according to its
windings and turnings, and that must be the middle or center of
it."
In the case of
Mayhew v. Norton, a grantor had conveyed
land to be bounded by the
harbor of Edgartown. The Supreme
Court of Massachusetts decided that the flats in front of the lots
conveyed passed by the deeds, because they were in the harbor,
although the quantity of land conveyed and the length of the lines
would have been satisfied by applying them to the upland alone. In
the case of
Cockerell v. McGuire, 4th T.B.Monroe 62, the
circuit court, in ejectment, had instructed the jury upon a
question of boundary that the following calls in the patent:
"thence from the fourth course down the river these several
courses should be construed by the jury as a call to run down the
river bounding thereon, with its meanders,"
&c. The supreme court, to whom this cause was carried by
writ of error, said:
"In cases of boundary which depend upon the swearing of
witnesses, it would no doubt be incompetent
Page 62 U. S. 321
for the court, by any sort of instructions that might be given,
to withdraw from the jury a decision upon the weight of the
testimony and the facts which the testimony conduces to
establish."
But the case under consideration is not one of that sort. The
question for our consideration involves no inquiry into the
testimony of witnesses, but, on the contrary, in the absence of all
parol evidence as to marked lines, presents for the determination
of the Court the construction of the calls for boundary mentioned
in the patent, and surely none will pretend that the legal
construction of a patent is not a matter proper for the decision of
a court. If in the first branch of the instructions the court was
correct in supposing that the call in the patent to run down the
river these several courses &c., should be construed as a call
to run with the river, it was unquestionably correct to instruct
the jury that the north fork between the fourth corner of the
patent and the beginning formed part of the boundary, and that in
the first branch of the instruction the court gave a correct
construction of the calls of the patent, we apprehend there can be
no ground for reasonable doubt.
In the case of
Newsom v.
Pryor, 7 Wheat. 10, it is laid down by this Court
as a rule for the construction of surveys and grants that the most
material and certain calls must control those that are less
material and certain. A call for a natural object, as a river, a
known stream, or a spring, or even a marked tree shall control both
course and distance.
The recent decision of
French v. Bankhead, in the 11th
of Grattan 136, decided by the Supreme Court of Virginia, within
which state are the lands embraced in this controversy, has an
important bearing upon the cause, as it shows the interpretation by
the highest tribunal of that state of grants made by her with
reference to lines running to watercourses and of the effect of
watercourses upon such boundaries. In the case just mentioned, it
was ruled that the water boundary, though run by course and
distance, would be controlled by the actual course of the shore and
would pass the right to the property to low water mark.
Upon the reasoning hereinbefore declared and upon the
authorities cited, to which others might be added, we are of
the
Page 62 U. S. 322
opinion that the patent from the State of Virginia of the date
of July 29, 1851, was unwarranted and illegal as having embraced
within it lands which were not waste and unappropriated, but which
had been previously granted by competent authority and long in the
possession of the patentee and those claiming title under him. We
are further of the opinion that the construction of the circuit
court in relation to the character and effect of the elder and
junior grants of the land in controversy was correct, and that its
decision should therefore be, as it is hereby
Affirmed with costs.