Iver v. Walker

• Decision Date: 11 March 1819
• Citation: 4 Wheat. 444,17 U.S. 444,4 L.Ed. 611
• Parties: McIVER'S Lessee v. WALKER et al
• Court: U.S. Supreme Court

17 U.S. 444

4 Wheat. 444

4 L.Ed. 611

McIVER'S Lessee v. WALKER et al.

March 11, 1819

ERROR to the Circuit Court for the District of East Tennessee. This was an ejectment brought in that court, by the plaintiff in error, against the defendants. Upon the first trial of the cause, a judgment was rendered in the circuit court in favor of the defendants, and upon that judgment a writ of error was taken out, and the judgment reversed by this court, at February term 1815 (9 Cranch 173); and the cause was sent back to be tried according to certain directions prescribed by this court.

As the opinion given by this court upon the reversal of the first judgment contains a statement of the facts given in evidence upon the first trial, it is deemed proper to insert the opinion in this place. It is as follows:

'On the trial of this cause, the plaintiff produced two patents for 5000 acres each, from the state of North Carolina, granting to Stokely Donelson (from whom the plaintiff derived his title), two several tracts of land, lying on Crow creek, the one, No. 12, beginning at a box elder standing on a ridge, corner to No. 11, &c., as by the plat hereunto annexed will appear. The plat and certificate of survey were annexed to the grant. The plaintiff proved that there were eleven other grants of the same date for 5000 acres each, issued from the state of North Carolina, designated as a chain of surveys joining each other, from No. 1 to No. 11, inclusive, each calling for land on Crow creek as a general call, and the courses and distances of which, as described in the grants, are the same with the grants produced to the jury. It was also proved, that the beginning of the first grant was marked and intended as the beginning corner of No. 1, but no other tree was marked, nor was any survey ever made, but the plat was made out at Raleigh, and does not express on its face that the lines were run by the true meridian. It was also proved, that the beginning corner of No. 1, stood on the north-west side of Crow creek, and the line running thence down the creek, called for in the plat and patent, is south, forty degrees west. It further appeared, that Crow creek runs through a valley of good land, which is on an average about three miles wide, between mountains unfit for cultivation, and which extends from the beginning of survey No. 1, in the said chain of surveys, until it reaches below survey No. 13, in nearly a straight line, the course of which is nearly south, thirty-five degrees west, by the needle, and south, forty degrees west, by the true meridian; that on the face of the plats annexed to the grants, the creek is represented as running through and across each grant. The lines in the certificate of survey do not expressly call for crossing the creek; but each certificate and grant calls generally for land lying on Crow creek. If the lines of the tracts herein before mentioned, No. 12 and 13, in the said chain of surveys, be run according to the course of the needle and the distances called for, they will not include Crow creek, or any part of it, and will not include the land in possession of the defendant. If they be run according to the true meridian, or so as to include Crow creek, they will include the lands in possession of the defendants. Whereupon, the counsel for the plaintiffs moved the court to instruct the jury, 1st. That the lines of the said lands ought to be run according to the true meridian, and not according to the needle. 2d. That the lines ought to be run so as to include Crow creek, and the lands in possession of the defendants. The court overruled both these motions, and instructed the jury, that the said grant must be run according to the course of the needle, and the distances called for in the said grants, and that the same could not legally be run, so as to include Crow creek, and that the said grants did not include the lands in possession of the defendants. To this opinion, an exception was taken by the plaintiff's counsel. A verdict and judgment were rendered for the defendants, and that judgment is now before this court on a writ of error.

'It is undoubtedly the practice of surveyors, and the practice was proved in this cause, to express in their plats and certificates of survey, the courses which are designated by the needle; and if nothing exists to control the call for course and distance, the land must be bounded by the courses and distances of the patent, according to the magnetic meridian. But it is a general principle, that the course and distance must yield to natural objects called for in the patent. All lands are supposed to be actually surveyed and the intention of the grant is to convey the land, according to that actual survey; consequently, if marked trees...