Swann,, for the. Plaintiff in error., Jones, contra., C, Lee, in reply., Marshall, Ch. J.

Marshall, Duvaxx, Story, Tódd, Todd.

<p>ERROR to the Circuit Court for . the district of East Tennessee, in an action of ejectment brought by the Plaintiff in error against the. Defendants.</p> <p>The case is1 thus stated by the chief justice in delivering the opinion of the Court. .</p> <p>« On the trial the Plaintiff produced two patents for 5000 acres each, from the state of North Carolina, ■granting to Stockley Donalson, from whom the Plaintiff derived his title, two several tracts of land lying on Crow Creek, the one, No. 12, beginning at a box standing on a ridge corner to No. 11, &c.“ as ly the “ plat hermnto annexed will appear.” Tfie plat and certificate of survey were annexed to the grant. .</p> <p>The Plaintiff proved that there were eleven other grants of the same date for 5000 ácres raah. issued from the state of North Carolina, designated as a chain of purveys joining each other from No. 1 to No. 11, inrjusive, each calling for land on Crow Creek, as a general call, and the courses aud distances of which, as described in the grants, are the same with life grants produced to the jury. • It was a,Iso proved that the beginning of the first.grant was marked and intended as .the beginning porner of No. 1, but no other tree was marked, no.r any survey ever made, but the plat was made out at Raleigh, and does not express on its face that the litres 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, and oalledffor in the plat,and patent, is south .40 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 ning of the survey No. 1, in the said chain ox surveys, .uiitil it reaches below survey No. 13, in nearly a straight line, the coursp of which is nearly south thirty-five degrees west by the needle, and south forty degrees west by the true meridian. -That in the face of the plats aunexed 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 ; each ceMilicate and grant calls gfner.dly for (and lying on Crow Creek. If the lines of the tracts herein before 'mentioned Mo. 12 and 13, in the said chain of surveys, be run according to the course ot‘ the needle and distances cálk-d for, they will not include Crow or any part of it, and will not include the land *n P!,ssess‘on °f’ the Defendants. If they be run arrordbig to the true meridian, or so as to include Crow Creek, they will include tlie lands in possession of the DefenWhereupon the counsel for the Plaintiff moved the Court to instruct the jury»</p> <p>1. That the lines of the said lands ought to be run according to the true meridian and not according to .the needle,</p> <p>2. That. the. lines ought to be run so as to include Crow Creek and the lands in possession of the Defendants.</p> <p>/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 be legal.ly 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. ’Plaintiffs counsel, A verdict and judgment were rendered for the Defendants, and that judginent is. now before this Court on a writ of error.”-</p> <p>The chief justice in stating the rase, omitted the fact that testimony ¡ivas offered by the Plaintiff at the trial to prove1 “ that, the surveyor who, made the piats and certificateS of survey annexed to the grants, had regard « to the true meridian, and not to the course of the nee- « die, in making the said certificates of survey, and in-' “ tended the courses of the surveys so to be run which testimony was rejected,, by the- Court below, as inadmissible- — but the Court.admitted evidence « that « the general practice of making surveys by surveyors •« lias béen to run to the courses of the needic.”</p> <p>I The Court below ought not to have rejected the testimony to prove the intention of the. surveyor to rtin the lines.of these grants by the true meridian. It corroborates the. p^t annexed to the grant. The rule of construction* as to grants from tue state, especially in Virginia, N. Caroljna and Tennessee, differs from the rule as to other deeds. Course and distance may be cortroled by parol evidence, of the actual manner in which . the survey mas made, and of the actual marks and bounds made upon the land at the time of the survey.. The Courts have not stopped at a natur J object called for, . li.parol evidence be' given that according to the actual purvey the line extended bey ond that object. The marks Control the course and distance of the .patent. 1 Hen. and Man. 77, Baker v. Glasscock. Taylor’s «/V*. Carolina Hep. 116, Hayward’s Rep. 238, 378 — MS. Rep. Blount’s lessee v.. Masters. 3 Call. 239, Herbert v. Wise. .</p> <p>If the witness had testified that a > survey liad ueert actually made and that it included the creek, it would have been admissible testimony. But the plat was intended tb be. a substitute for án actual survey. . It was a part of the-patent, annexed to it and referred to. by it. It was as much a part of the patent as,if it had been insertedin it. It shows that, the land ought to be laid iff so as to include the creek, as plainly as if the patent had expressed it m words. The cafarse, south *0 degrees west, is ambiguous — it may mean a magnetic or a meridional course. The question is what'was the. intention of the surveyor? How shall it be ascertained? The most direct mode of ascertaing it is to prove'his declarations r. t the timé. It. is true that by proving what was the general practice of surveyors you may infer his intention — but that, is a secondary mode ,of proof, and less Certain than proof of his declarations at the.time he made. the particular survey in question... This is not-bringing parol evidence to contradict or to control the plat, but to corroborate and Gonfirm it.</p> <p>if a grant is capable of two co. structions, the-Court must adopt that which is most beneficial to the grantee. 1 Taylor’s JRcp. 163.</p> <p>general practice of the country is to survey by the compass, and ail the courses expressed in surveys refer to the magnetic meridian, A certificate of survey therefore is always supposed to express magnetic courses unless the contrary is expressed on its face. No parol proof can be admitted to contradict what is so strongly implied. It would be a dangerous practice — it would, be a difficult thing foi* a common surveyor to ascertain the true meridian, and there is no 1. w of North Carolina which compels him to do it The testimony offered was not to prove any act of the surveyor, but his intentions.</p> <p>There is no natural boundary called for in the pa- . tent, The general expression that the land is on Crow-Creek, cannot control the course and distance. The Expression in the patent« as by the plat hereunto annexed will appeal;»” refers only to the courses and distances, and not to the actual location of the land. The figure of a creek delineated on the plat, without any reference to it in the certificate of survey, carinot control the boundaries actually described. Not a word is said about the lines including or crossing Crow Creek: and in order to include the creek you must deviate from the straight line called for.</p> <p>The intent of a grant must be effectuated, if by an£ means, consistent with the rules' of law, it can be done. The intent of this grant cannot be1 effectuated by the mode of survey directed by the Court below. The plat, annexed to thotgrant, shows the intent to be to make the survey conform to the nature of the gro'iihd so as to include the creek and the valley, and exclude the mountains. The law of North Carolina, requires the1 plat tobé annexed to the deed, which is thereby, and by the reference to it in the body of the deed, made a part thereof; and contains a plain declaration that the gran-t tee shall have the valley through which the creek-runs.</p> <p>On what ground could the testimony of the intention of the surveyor, have been rejected by the Court, when they admitted testimony to show the general practice to be to survey by the magnetic meridian? That general practice was only a factfrom which the, jury might infer, in the absence of positive testimony, what the intent of the surveyor was. It was agrade of evidence inferior to positive testimony of the intention. It was only prima facie, not conclusive evidence of his meaning. There was no law of North Carolina which required the surveyor to go by the magnetic, and. not by the true meridian. He was at full liberty to adopt the true meridian if he pleased. We say he did so, and the plat itself isevidence of the fact ‘, for it could not otherwise, be consistent With itself. You must run the lines according to the true meridian to include the creek.</p> <p>Hoes not a. difficulty arise in consequence of the grant having been made without actual survey ?</p> <p>C. Lee. , That is a matter between the state and the grantee. After a grant, no stranger can take advantage of such a defect. The state may wave the objec- . tion if it chuses to do so.</p> <p>Swann. It has been settled, I believe in North Cáro lina that whfen a grant has actually been made, iv> enquiry shall be made by the state as to the survey, &c.</p> <p>In Hayward’s Rep. 358 the judge says, “ when a « grant has issued we can look no further back; all « previous proceedings must be considered as regular.”</p>