Opinion
(December Term, 1836.)
Where a grant called for a "beginning at a pine at the sound side, and running thence along the sound and marsh S. 36 E. 220 poles to the head of a bay which makes out of the sound," it was held, that the sound was the boundary; and that such a call could not be departed from to follow mere course and distance, under any circumstances.
The case of Sandifer v. Foster, 1 Hay. Rep. 237, approved.
THIS was an action of EJECTMENT, tried at Tyrrel, on the last Spring Circuit, before his Honor Judge DICK. After the lessors of the plaintiff had made out their case, by producing a grant from the state, which covered the land in dispute, the defendant introduced and relied upon a grant from the state, of a prior date, which, he contended, also covered the disputed premises. His grant was for a tract of land lying in Tyrrel county, on Crotan Sound, "beginning at a pine at the sound side, Samuel Mann's corner tree, running thence along the sound and marsh south thirty-six degrees, east two hundred and twenty poles, to the head of a bay that makes out of the sound," c. The dispute was as to the proper location of this line; the lessors of the plaintiff contending, that it should be a straight line, according to the course and distance; in which event, the defendant's grant would not cover the land claimed by them; while the defendant insisted, that the line must run on the margin of the sound, in which case his grant would include the disputed land. The lessors of the plaintiff, in support of their position, produced in evidence a copy from the secretary of states' office, of the defendant's grant, with a plat annexed, in which the line aforesaid was represented as straight, and not according to the various courses of the sound; and they proved also its correspondence with the course and distance mentioned in the grant. A verdict was rendered for the plaintiffs' lessors, subject to the opinion of his Honor, who, not thinking them entitled to recover, directed a nonsuit; from which they appealed.
Heath, for the plaintiffs.
No counsel appeared for the defendants in this court.
— The patent describes the land as lying on Crotan Sound, and "beginning at a pine at the sound side, and running thence along the sound and marsh, south 36 east two hundred and twenty poles," to another point, which is also on the sound. There is, therefore, a precise call for the sound, throughout the first line, from its commencement to its termination; and we deem it perfectly settled, that such a call cannot be departed from, to follow mere course and distance, under any circumstances. There are numerous cases, that the natural boundary called for, corrects and controls course and distance. Den ex dem. Sandifer v. Foster, 1 Hay. Rep. 237, is the leading one; and in that, these same words, "thence along the river," carried a line half a mile beyond a white oak, called for as its termination, to the river, and then up the river, as it meandered, to the beginning, which was on the river. The judgment must be affirmed.
PER CURIAM. Judgment affirmed.