#### McNeill v. Massey.

> From Cumberland.

In questions of boundary, marked lines, or trees, are more certain than course and distance, and, therefore, shall control them; accordingly, where there has been a long and continued possession, up to lines variant from those called for in the grant, and it appears that such lines were recognized, as the true' lines of the grant, by several adjoining patents ; these are facts which point to something controlling the courses and distances of the grant, and should, therefore, be submitted to the ,1 ury, to draw from them such infer, ence as they may think proper, because boundary is matter of fact.

A Judge is not bound to charge on all the points in a case ,• he may be silent if he will, unless called on by one of the parties to express his opinion on a point of law ; but where he passes over one point, which is preliminary, to get at another, which could not fairly arise until the first is disposed ofj it is error.

This was an action of trespass quare clausum f regit, tried before Norwood, Judge. 'The Plaintiff proved himseif in possession of the land in dispute, represented on the anuexed diagram by the letter H. and that the Defendant entered upon it, and pulled down If s fence.

The Defendant justified under a patent granted to Malcolm Clarke, in 1754, for land described as follows': “beginning at a red oak in Gilbert Pattison’s corner, thence along said Pattison’s line, N. 45, E. 206 poles to a pine, thence N. 45, W. 197 poles to a stake, thence S. 45, W. 114 poles, to a small white oak on the river, thence down the river to the place of beginning,” and regularly deduced title from the patentee, through his father to himself, for the same land.

*92The Plaintiff then produced a patent, granted to Gii-bert Pattison, in 1740, for land, described as follows : “ 640 acres lying and being m the county of Bladen, on jjic North-East side of the North-West river, beginning at a Spanish oak on the river bank, below Deep Water Island, at the upper corner of Nathaniel Ling-lie’s land, thence by the said Nathaniel’s land, N. 45, E. 85 chains to a stake, thence N. 45, W. 80 chains to a stake, thence S. 45, W. 70 chains, then along the river to the first station,” and shewed a regular title down to himself for the same land.

Each party had been in possession, under their respective patents, from the date thereof; but as to the part in dispute, there was no direct proof of actual possession, prior to the year 1806, at which time the Defendant’s father was in possession,' and continued so until 18-19, when Defendant’s father, and Plaintiff, having disputed about the right of possession, it was referred to arbitrators, who awarded the land in dispute to Plaintiff,-who, thereupon, went into possession, and has since so continued.

The principal point in the case was, whether the upper corner of the Pattison patent, was at F or D; the Plaintiff contending for D, and the Defendant for F. Plaintiff also insisted, that if he had a possession, anterior to 1806, of twenty-one years, it made good his title under the act of 1791, although the upper corner of Pat-tison’s patent might, originally, have been at F.

The testimony, as to the lines C D and F G, was, that both were run in 1819, and at that time were both found to be forty-six years old, and on the line C D, at the point E, a stake and pointers were found, corresponding in date, with the trees on C D and I< G. If the Pattison patent were run according to course and distance, it would not extend to the lines B C, or F G.

The Jury were instructed, that they were not at liberty to depart from the course and distance of the Patti-*93son patent, after leaving Linglie’s Hue, except to pursue some old marked line, which they believed corresponded with the. date of the Pattison patent, and was the line actually run when the land was located, as the only description in that patent, was course and distance. And also, that the Plaintiff, in making out title, under the act of 1791, must shew that he had been in possesssion for twenty-one years, under known and visible lines and boundaries, and that, in so doing, he would be restricted to the first marked Une, \ v¿. F G, unless they believed there was another line, which was the true one; and that, in the present, case, it was the opinion of the Court, that the Plaintiff could not claim beyond the line F G__Verdict for Defendant. A motion for a new trial was made, and refused; judgment and appeal.

There were adjacent tracts which appeared from the plat in the case to be conterminous with the Pattispn grant, but the calls of those adjacent grants were not given.

*94Gaston, for Defendant.

it is a rule in law, that where a deed calls for course and distance only, you cannot depart therefrom, eúócept io follow a line originally marked. —(1 Hay. 23, 377 — 4 Wheat. 444 — 3 Mur. 86, 91.)

Jti fact, the excepted case is tolerated only because of repeated adjudications, for it is permitting parol evidence to contradict a deed. — (2 Hawks, 224.)

The proper construction of a deed when no external testimony is offered which can affect it is, a pure question of law.

As to the second point, there is no pretence for supporting Plaintiff’s case under (be act of 1791; there is “ no colour of title;” there are no “known boundaries.” Bui the Judge’s opinion was right on the ground ho look. — (4 Hen. Sf Mum. 130.)

Ruffin, contra.

Boundary is a question of fact, or so much so, that it is to be entirely decided on by the Jury; as has been often decided by this Court — Reddick v. Leg-gat. — (3 Murph. 539.) Urbison v. Morrison. — (Id. 555.) Tate v. Greenlee — (Id. 55G.)

And in this last case, the call of the grant was for a stake, and at the same time, the line of another tract. The-Court took on itself to say, that the line must .stop at the end of the distance. The Judges here .said, they would., as individuals, probably think so too ; hut without entering into the question of boundary at all, a new trial was granted, “to give the decision of the question to the proper tribunal.”

And where one patent called for the line of another, and it was disputed, as here, which were the lines of both tracts, and the Judge below instructed the Jury, that the younger patent was fo go to the line of the elder, be that where it might; and that it was for them to say where the old line was; this Court held the instruction right, . — Frail Brower.• — {9. Hawks. S37.)

The Judge gives an express opinion here, that the *95Plaintiff must be bounded by a particular line: it is true, that he had before told the Jury that he must be so bounded, unless they believed there was another line, which was the true one; and thus seemed partly to leave the question open to the Jury : but in the next sentence, he tells them, directly, which, in Ms opinion, is the true line; and thus decides the very point he bad affected to submit to them.

The Clarke patent calls for the Fallison line; and therefore, it is said, upon the authority of Fruit v. Brower and of Blount v. Benbury, it was to extend to it at all events.

This case is distinguishable from both those.

Blount v. Benbury, stated by Taylor, Chief-Justice, in Cherry v. Slade, (3 Murph. 88,) was a case in which the line called for was an old marked line; and the Chief-Justice takes notice of that fact, in the remarkably emphatic language, “it is to be rememberedand, Judge Hall’s words are, “you may depart from the li ne> described in the deed to follow' a marked line, which the Jury believed was the true onenor does it appear, that the patent called for any marked trees; although, a line, different from Blount’s, w'as actually marked. And in Fruit v. Brower, Esther’s Patent began at a stake, the corner, &c.

Here, a red-oak is called for, as PcllisoiFs corner, and the line from it as his sine; and it does not appear that any line liad been marked for Fattison. It is established, and is laid down by the Chief-Justice, (3Murph. 86,) that course and distance is to be. disregarded, where a line was actually run and marked and a corner made: there the marks shall be the line, and correct the other calls of the deed as to course and distance.

Now here, the red-oak, as called for, w'as marked as the beginning for Clarke, and shall be his beginning, as it is stated in the plat to be still there, and admitted to be his beginning. If the deed did not also call for Paihson’s line, there would be no pretence for a departure from tiie red-oak; and if Pattison’s corner be at a different spot *96from the red-oak, sha J that produce a departure? Why should it? The objert in all the cases is to ascertain the line aciualiy run; surely the marked trees are better evidence- of that, than the call for an unascertained line. Here are two calls that are- inconsistent, and one of which must yield to the other; that ought to prevail which is the most certain proof of the fact sought for: which is, what did ¡lie surveyor actually run? Hence, in laying* down the third rule, in respect to the calls for the lines and corner» of another tract, the Chief-Justice sajs, that the li'ico shall be extended to them without regard to distance and course, (not marks') with this fjualiiication, however, that those lines be sufficiently established; and that no other departure be permitted, from the words of the- patent, (that is, the other calls,) than such as necessity enforces, or a true construction renders necessary.

It is plain, therefore, that Clarke, cannot go beyond the line O. C. indeed, the Defendant does not pretend it, and never claimed beyond it, under that patent; but has taken out a new* one, (in 1820,) for the land between the two lines.

The inference from this, is, that line B. C. is also the Fidlison line. Boundary lies in tradition, hearsay, and reputation, as well as in com* e and distance, the lines of other iru< is or marks. It is peculiarly necessary that it should be so in this country; where all the. marks are in their nature extremely perishable; while they exist, they govern fiie, patent; wb.cn they are gone, and the witnesses to their existence dead, we have nothing else but tradition and reputation to rely on. If that do not govern, a-patent which now covers 1000 acres, will 100 years hence not be a title for the one half of if. Time, instead of ripening titles, will dislroy then!.

I\ov. of all tradition and reputation, upon the subject of boundaries, that contained in the calls of other patents, and the settled lines of other tracts, is the suongvsi and most satisfactory. It is least liable to mistake or alter-*97afion. It lias toe greatest permanency of which human .transactions or declarations are capable, being in writing, Hence, the calls of adjoining tracts liavc been always conquered high evidence, of old boundaries,-— (Tate v. .-.'oulkanL (1 Hawks, 45.)

Judge Hr.uLers-.ni's words are, *• it is sufficient to-shew that it istia common reputation of i¡>c ncig ¡bourbood, that 'be fiad is bounded by the Hues of the surrounding tracts, aitkoogu they were not made originally for it.”

It is surely much stronger ev ideuce, than mere reputation of the neighbourhood' that the. surrounding tracts, with know 5, established and marked lines, do call their lines, Paliison’s hues.

Here we luue not the calls of any of the adjacent patents but, that of Clarke, of 1754.

But it is obvious iiMr the plat, that ail Use contiguous tracts were intended to be. conterminous with Pat-tison.'

The patents of 1754 and ’72. are the material ones.

That of 1754. beginning at a red-oak, and running the same course with Pallison’s, to a pine, calls this defined line, wif.ii a marked beginning and ending, Pattison’s line. It was made only fourteen years after Pattison’s survey, when every thing was fresh in memory. The course is right, ami the distances of Pattison’s lines, upon accurate suney, now, do not mor© exceed those called for, than was usual and almost universal; of which the Jury was obliged to know.

That of Clarke, in 1772, is bounded by the line of that of 1754. extende If (he line we insist on, was not that of 1754. why should Clarke, in his new patent, make that, small offset ?

The survey was made in October, 1772, after the growth of that year, which would just make {buy six years in ift 19. that being the age of all those marked lines,bis slated in the plat.

*98This serves to shew how those lines came to be rim. It was, no doubt, to enable Clarke, satisfactorily, to lay out and survey his new entry, having a line of the same C0Hrae with the old one. Several lines wore run for that which divided Pattison and Clarke’s old surveys; but, finally, D C was adopted, was run and marked, and “pointers” at A, also marked, as the corner of both of Clarke’s tracts.

This is a dear reputation, permanently put into "writing, of the lines of Pattison. And there never was a case of boundary, “ depending more on its own particular circumslances, where every shade of evidence and every minute circumstance may produce its effect,” than this. There could not, therefore, be a more proper case for the Jury, exclusively.

But if it should not establish, absolutely, Pattison’s line, as originally run, it does establish his daim, and the understandings of the neighbourhood upon it. And such a reputation is held to bo sufficient to give a title under the act of 1791. — Tate v. Southard, (1 Hawks, 45.)

The Judge erred, therefore, in stating that the Jury must adhere to course and distance, unless they could find an old marked line of the age of Pattison’s patent, which they should believe was actually run when the land was located; and that, as, under the act of 1791, the Plaintiff must shew known and visible boundaries, he must be stopped at the first line. This instruction, that the Plaintiff must stop at the first line, was, in the first place, assuming the fact, that that line was the line actually run for Pattison ", and, in the next place, that the boundary of Pattison must be a line run/or his tract. The first position is directly against the act of 1796$ ■and the latter, against the terms of the judgment in Tate v. So .thard.

Here is a possession for sixty-six years, from 1740 to 1806. and a continued daim, after that period, to 1819, when the possession is again, by consent of Defendant’s *99father, in Plaintiff. grant at common law That is sufficient to presume a —FitzrandoLph v. Norman, (JV. C. T. R. 1S1.)

If this grant of Pattison cannot be extended by presumption, because it has a defined legal boundary, by course and distance, then another grant might have beca taken out, of which the lines, for which we contend, were the boundaries; and such other grant will be presumed to support so long a possession, up to fines esteemed and reputed to be Pattison’s, for nearly seventy years.

Henderson, Judge,

delivered the Court’s opinion.-*-

In our exposition of the boundaries of a grant, or a conveyance of lands, wo very properly say, that marked trees, or lines, being more certain than courses and distances, shall control them. This the presiding Judge recognized as law; but the effect, of his charge, although, be may not have designed it, is to require proof direct of these facts; whereas, like all facts, they may be inferred from other facts, if the fact proven be relevant to the fact to be inferred. The facts set forth in the record, shew a long and continued possession, up to lines variant from those described by the courses and distances called for in the grant, and from the plat accompanying and forming a part of the case; these lines were recognized as the lines of the patent by several adjoining patents. This latter fact does not very distinctly appear, for the calls of the latter patent are not given $ but they are laid down on the plat as bounded by suck lines. These facts pointed to something which controlled the courses and distances of the grant. Whether they proved that marked trees were once there, is an inference of fact which belongs to the Jury. All that the Court can say is, that they are relevant to .such an inference, and that the Jury may. if they think proper, make it. If such was not the law, most of our patent? *100vv oil Id chango their locality, as oar ¡narked trees de-' rayed, and our «roots direct, of their having once stood " x there, were. lost. I think that there should be a new |¡,-¡A]) ftie j(ldge not having called the attention of the Jury to t.hs-= point; not that there should be a new trial because the Judge did not charge on any or all the points in a case; he may be silent, if he will, unless-called on by one of the parties to express bis opinion on a point of law. But where be passes over one point to get at another, and where the point passed over, (as in this case,) is preliminary to the one passed to, there it is error; for the latter point could not arise uni i I the prior one was disposed of; that is, in tin's case, the Jury could not Jay down the patent by course and distance? if there were originally marked lines and trees; to which oiti-¡j.-istthe evide-ice pointed.. Í am very far from, -yyng that here a as evidence sufficient to prove, tii«f there were once marked lines; it is not my province ? all that I say is, that there was enough to leave it to a Jury.