The case is a hard one on the part of the plaintiffs; and they may have strong claims on the liberality and justice of the United States, or of Virginia; but we do not think the legal title can be made to yield to an equity founded in the mistake of a ministerial officer.

Decree affirmed, each party paying his own costs.

1822.

Newsom

V.

Pryor.

[LOCAL LAW.]

NEWSOM V. PRYOR's Lessee.

Where platts are returned and grants made, without an actual survey, the rule of construction which has been adopted, in order to settle the conflicting claims of different parties, is, that the most material, and most certain calls shall control those which are less material and less certain.

A call for a natural object, as a river, a known stream, a spring, or even a marked line, shall control both course and distance.

There is no distinction between a call to stop at a river, and a call to cross a river.

Where a grant was made for 5,000 acres of land, “lying on both sides of the two main forks of Duck river, beginning, &c. and running thence west 894 poles, to a white oak, thence south 894 poles, to a stake crossing the river, thence east 894 poles, to a stake, thence north 894 poles to the beginning, crossing the south fork;" it was held, that it must be surveyed so as to extend the second line of the grant such a distance on the course called for as would cross Duck river to the opposite bank.

THIS cause was argued by Mr. Law, for the

a He cited 1 Cooke's Tenn. Rep. 146. 1 Heyw. Rep. 253. 2 Heyw. Rep. 75. 139. 179. 4 Wheat. Rep. 448.

Feb. 6th.

1822.

Newsom

V.

Pryor. Feb. 11th.

plaintiff in error, and by Mr. White, for the defendant in error.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This is a writ of error to a judgment given in the Circuit Court for the District of West Tennessee, in an ejectment brought by the defendants in error against the present plaintiff. The plaintiffs in the Court below claimed under the elder patent, to the validity of which there was no objection. Of consequence, the only question in the cause was, whether the lines of their grant comprehended the land in contest. The grant was made for 5,000 acres of land, "lying or both sides of the two main forks of Duck river, be inning, &c. and running thence west 894 poles, to a white oak tree; south, 894 poles, to a stake crossing the river; thence east, 894 poles, to a stake; thence north, 894 poles, to the beginning, crossing the south fork."

It is apparent that a survey was not made in fact, but that, after marking a beginning corner, the surveyor made out and returned a platt, which he supposed would comprehend the land intended to be acquired. It is now too late to question the validity of grants made on such platts and certificates of survey. From the extraordinary circumstances of the country, they were frequent, and, in consequence of those circumstances, have received the sanction of

b Who cited 5 Cranch, 234. 2 Binney, 520. 1 Cooke's Tenn. Rep. 462. 2 Tenn. Rep. 154. 200. 302. Heyw. Rep. 237, 238. 258. 253. 496. 1 Hen. & Munf. 125. 3 Call. 252.

courts.

An immense number of titles, believed to be perfectly secure, depend upon the maintenance of such grants. The extent of the mischief which would result from unsettling the principle, cannot be perceived; and is certainly too great now to be encountered. The patent, therefore, must be considered as if the survey had been actually made.

In consequence of returning platts where no actual surveys had been made, and where the country had been very imperfectly explored, the description contained in the patent often varies materially from the actual appearances of the land intended to be acquired. Natural objects are called for in places where they are not to be found; and the same objects are found where the surveyor did not suppose them to be. In a country of a tolerably regular surface, no considerable inconvenience will result from this circumstance. The course and distance of the patent will satisfy the person claiming under it, and seldom interfere with the rights of others. But in a country where we find considerable water courses and mountains there must be more difficulty. The surveyor calls for some known object, but totally miscalculates its courses, distances, or both, from some given point which he has made the beginning of his survey; and there is a variance in the different calls of his survey, and of the patent founded on it. As in this case, the second line is to run south 894 poles, to a stake, crossing the river. This distance will not reach the river; and must be continued to 1,222 poles, to cross the river. The distance must be disregarded, and this line so extended

VOL. VII.

as to cross the river, or the distance must control the call for crossing the river.

These difficulties have occurred frequently, and must be expected to occur frequently where grants are made without an actual survey. Some general rule of construction must be adopted; and that rule must be observed, or the conflicting claims of individuals must remain for ever uncertain.

The courts of Tennessee, and all other courts by whom causes of this description have been decided, have adopted the same principle, and have adhered to it. It is, that the most material and most certain calls shall control those which are less material, and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall control both course and distance. These decisions are founded on two considerations. Generally speaking, it is the particular intention of the purchaser to acquire the land lying on the stream called for, as being more valuable than other land; and, in every case where a natural object is mentioned, it designates the land surveyed had there been an actual survey, much more certainly than course and distance can designate it. In this case, for example, the surveyor says that he has run south 894 poles, to a stake crossing the river. Now, it is much more probable that he should err in the distance, than in the fact of crossing the river. The conclusion, therefore, had an actual survey been made, would be, that the line did cross the river.

The general effect of this principle undoubtedly is, that the purchaser acquires more land than is ex

pressed in his grant, and more than he has paid for. Where this has been thought an object worthy of legislative attention, provision has been made for it. Courts cannot now shake a principle so long settled, and so generally acknowledged.

In this case, the counsel for the defendant in the Court below seems to have admitted the rule, but to deny its application to this case. He founds his application to the Court on a supposed distinction between a call to stop at a river, and a call to cross a river. After stating the testimony, "he required the judges to instruct the jury, that if they believed there was no testimony to prove the making of any other corner than the beginning corner, the correct mode of running the said grant would be to go the course and distance from the beginning corner, which would form the termination of the first line, and run from thence the course and distance called for in the second line; and if the course and distance will not reach across the river, that the call in the grant for crossing the river ought to be considered as a mistake in the surveyor, and be rejected; and the second line should terminate at the end of the distance, and from thence run the third line according to the course and distance, and from thence to the beginning. And the said counsel requested the judges to instruct the jury that such call as is in this grant, for a line to pass a river or other object, will be different in principle from what it would be if said call had been for said river, at the termination of the line or boundary; and although, in the latter case the law is, that such natural object shall be the

1822.

Newsom

V.

Pryor.