another particle of evidence which the court considered and which was of great weight in a determination of the question. That related to the fact that the island was four feet above the Missouri shore and practically of the same height as the Kentucky shore.

9974

$493. East half of tract, containing fifty acres. Where the description in a deed transferring a portion of a tract of land having an irregular southern boundary was the "east half of the east half of the northwest quarter, and the east half of the east half of the southwest fractional quarter, all in section 36, containing fifty acres of land, being the east half of the one hundred acres," etc., held, that the deed conveyed one-half of the quantity of the land, and not the land lying east of a line drawn through the middle of the tract. The court says: "It is a rule of law that a deed must be so construed, if possible, that no part shall be rejected. It is also a rule of construction that if the description in the deed be general, followed by one that is particular, the latter limits and defines the terms of the grant. In this case, the court says: "A conveyance containing a description of the "east half" or "west half" of a parcel of land, which purported to be according to the United States survey, would be definite, and exclude the idea of two equal quantities, but would convey the idea and intention of fixing the dividing line in accordance with the act of Congress." Hence it would likely be held, that if a tract of land were bounded by metes and bounds and then ended up by using the expression "according to the United States government survey," that the distances must be proportioned according to the original survey. But if, "according to the United States government survey," or similar words were omitted from the description then the surveyor would be justified in believing the description to mean the actual measurement at the time 74Jones v. Pashby, 62 Mich. 614,

29 N. W. 374.

75

such description was written. This is important for the surveyor and the courts to remember. In a Michigan case," the court had a similar proposition up for consideration and held that "east half" and "west half" of a certain tract meant the one-half of the quantity of land. Fig. 95. Referring to Fig. 95, it will be seen that the west line of the tract is the west line of Sec. 36; that the east line of the tract is the 1/16th section line. The entire tract was a government lot. Plaintiff owned a lease of "east half" and defendant of "west half" of Lot. 5. Question, Where is the proper boundary line? It is not specified to be "according to government survey." If the line be run as at CD, the line will run at a point equidistant between the east and west boundaries of the tract. If run as at AB, it would divide the tract into two equal areas. that AB was the division line.

76

Held

§ 494. A fractional part of government subdivision usually means that fractional part of the widths of that subdivision.— While a fractional part of a government subdivision usually means that fractional part of the width thereof, it may mean that part of the area. The context of the description or surrounding circumstances may change this meaning. In a Michigan case, the description under consideration by the court. was: "The east half of the east half of the northwest quarter, and the east half of the east half of the southwest fractional quarter, all in Section 36 containing fifty acres of land, being the east half of one hundred acres." It was held that this description carried the east half of the entire tract in area and not the east half of the width of the entire tract. The last part of the description, "being the east half of one hundred acres," evidently was given great weight by the court in arriving at its decision. Referring to Fig. 96, the line 1-2-3

75 Hartford Iron Mining Co. v. Cambria Mining Co. So Mich. 491, 45 N. W. 351.

76Jones v. Pashby, 62 Mich. 614, 29 N. W. 374

would divide the tract into two equal widths but not in equal quantities. The line 4-5 would divide the tract into two equal

1/16 Cor

Lake

14 63

quantities but not into two equal widths. The lines 1-2 and 6-7 would divide the two quarter-quarters so that it would

give half of each quarter-quarter. The line 4-5 was held to be the division line between the parties. The court says, “A con

veyance containing a description of the "East Half" or "West. Half" of a parcel of land, which purported to be according to the United States survey, would be definite, and exclude the idea of two equal quantities, but would convey the idea and intention of fixing the dividing line in accordance with the act of Congress." But the court held that this is not such a grant; that it was a mere matter of construction of a description and that the context was conclusive as to the meaning."

§ 495. What distance to take.-In 1846, at the time of the original survey, and also at the time of the writing of the description hereinafter set out, the distance across the north side of a certain tract of land shown on Fig. 97, was two thousand nine hundred and four feet. At that time a tract of land was sold described as follows: Commencing at the northwest corner of Section 3, of a certain township, thence running east along the town line to the first 1/16th corner; thence south along 1/16th line to the east and west quarter line; thence west on quarter line to the Mississippi river; thence up said river to the north line of said township; thence east along the township line to the place of beginning. A tract of twenty acres was later sold off of the north side of said described tract, “according to government survey." This tract was not surveyed until 1918. At the latter date the river had washed. away some sixty-eight and seventy-six hundredths feet from the west end of the tract. In 1918, a surveyor was called upon to part off the twenty acres. How should it be done?

Answer. At the time the land was originally described the distance across the north side thereof was two thousand nine hundred and four feet. The river runs due north and south at the place indicated. The south line of the twenty acres should be run such distance south of the north line and parallel thereto as to part of the twenty acres, using the distance at

77Edinger v. Woodke, 127 Mich.

41, 86 N. W. 397. Ante § 493.