Robert Chinoweth, James Tracy and Thomas Wilmouth, Plaintiffs In Error v. the Lessee of Benjamin Haskell Others, Defendants

• Citation: 3 Pet. 92,28 U.S. 92,7 L.Ed. 614
• Parties: ROBERT CHINOWETH, JAMES TRACY AND THOMAS WILMOUTH, PLAINTIFFS IN ERROR v. THE LESSEE OF BENJAMIN HASKELL and OTHERS, DEFENDANTS
• Decision Date: 01 January 1830
• Court: United States Supreme Court

28 U.S. 92

3 Pet. 92

7 L.Ed. 614

ROBERT CHINOWETH, JAMES TRACY AND THOMAS WILMOUTH, PLAINTIFFS IN ERROR v. THE LESSEE OF BENJAMIN HASKELL and OTHERS, DEFENDANTS.

January Term, 1830

WRIT of error to the district court of the western district of Virginia.

This case was argued by Mr Doddridge, for the plaintiff in error, no counsel appearing for the defendant. He contended:

1. That Wilson does not prove the making of any actual survey of the three last lines, and all that he does prove is that the protracted them.

2. That in protracting the line D. E. he guessed at a course and distance which he supposed would reach Young's corner; which he missed about five miles.

3. That he only proves it to have been his intention to go to Young's corner. He did not in this certificate of survey call for a corner to Young, but only for two chesnut oaks in a country where there is scarcely any other timber.

4. That course and distance, as called for, may be corrected by other matters of description in the certificate and grant, by any natural call or description which may identify a corner, or render it certain; as 'two chesnut oaks, corner to Robert Young's survey of one hundred thousand acres, &c. the first, second, or third corner, &c.' Such correction of course and distance cannot be made by a secret, undisclosed intention that the two chesnuts he called for should be those at one of Young's corners.

5. The course and distances called for in the grant will locate the grant on the waters and water courses, precisely as stated in the grant. This appears by the surveyor's diagram, which with the grant is record evidence of this fact. Let the courses and distances called for be varied according to Wilson's secret intention, the case will be very different.

The grant calls to be on part of Clover run, on Cheat river, and to include the waters of Pheasant run. These descriptions suit either mode of locating the grant: but the grant calls to be on the waters of Tygart valley, and to include part of the waters of Hornback's run and the cherry tree fork of Leading creek. Whereas, as he would locate his grant, it will include not only part of the waters of Hornback's run and the Cherry Tree fork of Leading creek, but all these two streams and their waters, and even all Leading creek itself, of which they are small branches; and his survey will be, not on the waters of Tygart valley river, but on the river itself, crossing it four times.

Mr Chief Justice MARSHALL delivered the opinion of the court.

The judgment in this cause was rendered by the court of the United States, for the western district of Virginia, in an ejectment brought by the defendants in error, to recover fifty thousand acres of land, a part of which was in the occupation of the defendants in the court below. The defendants in that court disclaimed as to the part of the land for which judgment was entered against the casual ejector, and went to trial as to the residue. The original plaintiffs having the eldest title, the case depended entirely on the question whether their grant covered the land in dispute. If it be surveyed according to the courses and distances called for, it will entirely exclude that land. The plaintiffs, however, claim to survey it in such manner as to comprehend the tenements in possession of the defendants.

A survey was made, and the diagram of the surveyor, with his report, exhibits the respective claims of the parties. The diagram A. B. C. D. E. F. A. represents the land claimed by the plaintiffs. A. B. C. D. G. H. A. represents the land, which, as the defendants contend, the grant to the plaintiffs ought to cover. A. B. C. and D. form the northern side of the tract, and are admitted by both parties to be correctly laid down. The question is whether the next line should run from D. to E. as contended by the plaintiffs, or from D. to G. as contended by the defendants. The line from D. to G. corresponds in course and distance with the call of the patent; it is S. nine W. four thousand six hundred poles. The line from D. to E. is S. twenty-eight degrees nine minutes west, four thousand eight hundred and fifty-four poles, varying nineteen degrees nine minutes from the course, and two hundred and fifty-four poles from the distance. This variance places the corner at E. about five miles west from that at G., and produces a correspondent change in the two remaining lines which form the southern and western sides of the land.

At the trial, the defendants demurred to the plaintiffs' testimony, and the jury found a verdict for the plaintiffs, subject to the opinion of the court on the demurrer. The court overruled the demurrer and gave judgment for the plaintiffs.

The demurrer states that at the trial the plaintiff gave in evidence the plat and report made by the surveyor, which show that the lines from A. to D. which bind the land on north, conform to the patent. That the other three lines D. E., E. F. and F. A. which inclose the land on the west, south, and east, are not marked, nor is any corner found at F. At E. two chesnut oaks were found where two chesnut oaks were called for in the patent. They are marked as a corner previously made for Robert Young. The lines D. G., G. H. and H. A. laid down by the directions of the defendants conformably to the patent, are not marked.

The plaintiffs also gave in evidence the patent under which they claimed, dated the 9th of July 1796, the conveyance of the patentees to them, and an official copy of the plat and certificate of survey on which the grant was founded. The land is described as lying on the waters of Tygart valley river, Cheat river, to include the waters of Pheasant run and a part of Clover run, part of the waters of Benjamin Hornback's and Cherry Tree fork of Leading creek. Th...