Opinion
August 1814.
In ascertaining boundary, the rule is to find the lines and corners, if they ever were made, and, if not, to take as data such as have been made; and if there are no monuments to govern, to take the course and distance called for.
Where but one line of a survey is marked, and it is longer than the distance called for, the second and third lines are to be added by making them run the courses and distances called for in the grant, and closing the survey by running from the termination of the third line to the beginning, disregarding the course called for. [Acc. Houston v. Pillow, 1 Y. 483; Davis v. Smith, 1 Y. 498, citing this case. See also 1 Y. 118; 5 Hay. 222, where this case seems also to be cited.]
Case agreed. —
The question in this cause is, whether, where but one line of a survey is marked, and greatly exceeds the distance called for in the grant, the other lines shall be made of equal distances, so that all the corners shall be at right angles.
According to the calls of the grant, the tract, which contains 5000 acres, is in the shape of a parallelogram, the lines of which call for the cardinal points.
On the part of the plaintiff, it is insisted that it is the presumption of law that the surveyor intended the lines of the tract to be at right angles. The Act of November, 1777, c. 1, § 10, directs that all lands shall be surveyed at right angles to the cardinal points. This being the direction of law, we must conclude that the surveyor intended to conform to that direction, as all officers are presumed to intend to do their duty.
Therefore the third line of the survey must be of equal length with the first, which has been marked, and the corners made at its extreme points. It is admitted this line is too long; it is the only line that has been marked.
There is no dispute about the second line running north. It is the third line, which it is contended should run so far east as will, from its termination, enable the surveyor, in making his fourth line, to run to the beginning to close his survey at right angles.
On the other side, the general doctrine recognized in Tenn. 297, is insisted on.
The Court feels well satisfied the law is with the defendant. On the doctrine of presumption of law, this opinion arises independently of authority, which is certainly in his favor.
All officers are, in law, presumed to do their duty correctly and faithfully.
As this is a question of intention in the surveyor, in relation to the boundaries designed, it must altogether depend on presumption of law, as insisted on by the plaintiff's counsel. But it is believed this presumption works against him. In running the first line, the law presumes the line was made too long by mistake of the chain-carriers; that it was unknown to the surveyor whilst the survey was making; for if he had found it out, we are bound to presume that he would have corrected the mistake. Progressing, then, in the survey, it did not follow that, because the chain-men made a mistake in the first line then, unknown to the surveyor, he would intend to make the third line as long as the first. In ascertaining boundary, the rule is to find the lines and corners, if they ever were made, and, if not, we must take as data such as have been made; and if there are no monuments to govern us, we must take the course and distance called for. We perceive no disorder in this process until the last or fourth line is to be run, so as to close the survey.
The distance of the third line must be made longer, or we cannot observe the course called for in getting back to the beginning. The only question then is, Which is to be abandoned, the distance of the third line or the course of the fourth? The distance of the fourth line is immaterial, as the survey must be made to close, whether the length of the line producing it be too long or too short. We are not to presume that the surveyor or chain-men would mistake in the third line, as they did in the first, supposing the line had been run. Because one mistake has been made, it is no reason that another should take place, especially a deviation from intention, when in legal presumption the mistake was unknown to those employed in making the survey.
But, in fact, the third line was not run at all, and the law not presuming a second mistake or intended deviation, we are constrained to lay down that line at the distance called for, and also presume that the intention of the surveyor, when he made his return of the survey, was that that line should be no longer. That he should have intended it to be actually as long as the first is impossible, unless we first admit that he knew at the time the actual distance of the first line, which the law will not permit us to admit.
In doing so, we should make the officer guilty of a crime, which is never presumed. It is equally clear that the officer, when he returned his survey, intended that it should close by a line to be run from the eastern extremity of the third line to the beginning. Without closing, no land would have been included. To close, then, was the first object in his mind, and he then believed, no doubt, that the line then closing would be to the cardinal points; in this he was mistaken; but, as the primary object of the surveyor was to complete the survey by closing the lines, the course must be abandoned, for both distance and course cannot stand together; and whether one or the other shall give way must in each case depend upon the intention of the surveyor, to be collected from the grant and the facts.
When lines are actually marked, though varying from the course, then the course must be abandoned. In fine, wherever the fixing of boundaries is the question, it must be done by ascertaining the intention of the surveyor, to be collected from proof of marks, and, when they fail, from presumptions of law. In this case the second line will be run north the distance called for, then east the distance called for, and then to the be ginning, a straight line, let the course be as it may.
The defendant must therefore have judgment.