#### WILLIAM A. SPRUILL vs. SAMUEL W. DAVENPORT.

Course and distance govern, in questions of boundary, unless controlled by some more certain description.

This was an action of trespass ware clausum fregit, plea, general issue, tried before his Honor, Judge Manly, at Washington county, on the last Fall Circuit.

The plaintiff claimed under a grant to Nehemiah Spruill, some of the boundaries in which are as follows: “then north along,” Ac., “one hundred and fifty poles to Benjamin Spruill’s line,” (atE.) “ then west along his, line and Thomas Mackey’’s line, three hundred poles to Gh'eenland Swamp,” &c. The distance of three hundred poles with Benjamin Spruill’s line, gave out (at F.) before arriving at Greenland Swamp, the course of which from that point being southwest. It also appeared that one William Mackey had a number of years ago owned a tract of land, part of which extended near to, (at 7.) but did not touch, the land of Benjamin Spruill; which land of William Mackey *135was known by the name of the u Mackey land ” many years after he sold it, though there was no evidence to show that it was ever at any time called the Thomas Mackey land. It was admitted that if the line, along Benjamin Spruill’s line, ran directly to Greenland Swamp from the point (at P.) where the three hundred poles terminated, the locus in quo would not be included. But if, from the termination of the three hundred poles, (at F.) on Benjamin Spruill’s line, "it ran directly to the Mackey land, (at 7.) and then to Greenland Swamp; or if it ran with Benjamin Spruill’s line up to its nearest approach to the Mackey land, some four hundred poles, (to L.), (north of the point where the three hundred poles terminated) and then to the Mackey land (at M.) some twenty poles from (L.) and with the Mackey land south, and then to Greenland Swamp, it would include the locus in quo.

The defendant requested his Honor to instruct the jury, that if no such line as Thomas Mackey’s ever existed, as called for by the boundaries in the Spruill patent, or if it was no nearer to the poiut of the termination of the three hundred poles, (at F.) than the land known as the Mackey land, (at 7.) they were bound to run the lines of Nehemiah Spruill’s patent, from (F.) the point of the termination of the three hundred poles on Benjamin Spru-ill’s line, directly to Greenland Swamp. His Honor declined giving the instruction prayed for, but told the jury that if they were satisfied that a line of the William Mackey tract was meant in the patent to Nehemiah Spruill, by “ Thomas Mackey’s line,” they were to run from the point of termination of the three hundred poles (at F.) directly to the Mackey land, and from thence to Greenland Swamp. Verdict for the plaintiff, and judgment thereon, and defendant appealed to the Supreme Court.

Moore, for the defendant, argued,

1: The phrase u along his (B. Spruill’s) line and Thomas Mackey’s line ” means the joint or common line of Spruill and Mackey. The proper meaning of the term, being a question for the Court, the jury should have been charged that as there was no such joint line, and no line at all, of Thomas Mackey, the run was from E., on B. Spruill’s line, 300 poles, and thence, as a terminus, to Greenland Swamp.

2. But if the phrase may embrace two different lines, it must *136mean two lines united, at their extremities; otherwise if Thomas Mackey’s line were five miles off, the run must be to it, from Spruill’s line, although it might embrace a dozen distinct tracts of land by such running.

3. It does not appear by anything in the case, but that Thomas Mackey’s line ran from F. to Greenland Swamp; so there is no ambiguity in the description made manifest, and of course there is no reason for running to William Mackey’s line. Any other Mackey’s line would have been equally as certain as William’s, and it does not appear but there were many of the name in 1786, who had lines in the neighborhood. (Mayo v. Blount, 1 Ire. 283.)

4. The reason why the run is made to lines called for, irrespective of course and distance, is, that they are deemed certain as termini ; but when their existence is uncertain, their location cannot be conjectured; because course and distance, vague and uncertain as they may be, and often are, still are more certain and reliable than such guesses.

5. There can be no protection against the extension of lines in this mode. If Thomas Mackey’s line can be shown to be intended for William Mackey’s line, it can be shown to be Job Jenkin’s line. The Court will allow no further invasion on the rules of evidence in boundaries. (Reed v. Schenck, 2 Dev. 416., Slade v. Green, 2 ,Hawks 218.)

Smith, contra:

The parties admit the boundaries of the grant to Nehemiah Spruill from the beginning to F., and it is conceded that wherever located, the line must be extended to Greenland Swamp. If in doing so, the lines touch the Mackey land at any point, they include the locus in quo; and this is the case, whether you follow Benjamin Spruill’s line round to E., its nearest approach to the Mackey land, or run direct from F. to 7., the nearest point of it.. It obviously fulfils the general description of the grant to touch the Mackey land — for it is located between the Benjamin Spruill land and the .Swamp, as it is placed intermediately between those objects in the calls of the deed.

2. It was known as the Mackey land in general terms, and William Mackey had conveyed it to some one the j^ear before the *137survey was made, upon which the grant afterwards issued to Nehemiah Spruill. It was not then, though it had been, William Mackey's land. There was no other Mackey land to which the description could apply. It must, therefore, refer to this or be rejected altogether.

3. It is submitted that the location of the lines of the Mackey land were properly submitted to the jury, and being ascertained, they were properly instructed to reach them.

If however there be a misdescription, it is one of unnecessary addition, and it was competent for the jury to hear evidence as to where the lines of Mackey ran, and correct, by rejecting as sur-plusage, the false additions. (Gilchrist v. McLaughlin, 7 Ire. 310, Hawse?' v. Belton, 10 Ire. 358.) Nor can the presence of a plat control the calls of a grant. (Literary Fund v. Clark, 9 Ire. 58.)

Pearson, J.

The only question was one of boundary. The grant under which the plaintiff claimed, it was agreed came around to Benjamin Spruill’s comer; their the call is, “ west along Benjamin Spruill’s line, and Thomas Mackeys line, three hundi'ed poles, to Greenland Swamp,” along said Swamp, &c. Running on the line of Benjamin Spruill, the distance (three hundred poles) gives out before making Greenland Swamp. At that point, the line of Benjamin Spruill turns north (going right off from Greenland Swamp which lies to the south west) and at the distance of some four hundred poles further, comes within about twenty poles of the north eastern corner of a tract of land, which was at one time owned by one William Mackey, and then turns east. At the point aforesaid, at the end of the distance called for (three hundred poles) a straight line west some fifty poles, would strike the southeast comer of the tract of land which was at one time owned by William Mackey. But from the point aforesaid in the end of the distance, in order to strike Greenland Swamp, the course must be southwest. It was agreed, that if the line from the end of the distance was to follow Benjamin Spruill’s line north, until it approached William Mackey’s line within some twenty poles, and then crossed over to said Mackey’s line, and then followed that line to the south east comer, and then ran directly to Green*138land Swamp, the locus in quo would be included. But if at the end of the distance, the line ran directly to the Swamp, the locus in quo would not be included.

His Honor instructed the jury, that if they were satisfied that a ■line of the tract of land which was at one time owned by William Mckey, was the line meant in the call of the grant under which the plaintiff claimed, to wit: “then with Benjamin Spruill’s line and Thomas Mackey’s line, three hundred poles, they were to run from that point (the end of the distance) to Wiliam Mackey’s line, and then to Greenland Swamp,” which would include the locus in quo. To this the defendant excepts. There is error.

In questions of boundary, course and distance govern, unless there be some more certain description by which one or both maj' be controlled. In this case, a line from: the end of the distance to Greenland Swamp, would not include the locus in quo; and the question is, was there any more certain description by which to control the distance and extend the line to the tract of land once owned by William Mackey ? No line of Thomas Mackey could be found, and we are at a loss to conceive of any principle by which the line of William Makecy could be substituted, so as to extend the line of the grant beyond the distance called for. It was error to submit the question to the jury, because there was no evidence to support, such a conclusion.

Per Curiam. Judgment reversed, and venire de novo awarded.