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survey made in 1813, was 17 deg. and 15 min. east. The western line of the B. tract was made of exactly the same length as the eastern line of the H. tract, and the beginning point of the two lines was the same. The difference in the course of the two lines could be satisfactorily explained by the change in the position of the magnetic needle which had taken place in the time intervening between 1745 and 1813. Held, that the two lines must be considered as coincident. Scott v. Yard, 46 N. J. Eq. 79; 18 Atl. Rep. 359 (1889).

The boundaries of a survey may be located by surrounding surveys referred to in its field-notes, though its corners and lines can not be found on the ground, and though there is a discrepancy in its area between the fieldnotes and its boundaries as so located. Longoria v. Shaffer, 77 Tex. 547; 14 S. W. Rep. 160 (1890).

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7. Private Surveys.-Private surveys and surveys made by official surveyors under statutes where such officers exist, are of course evidence of the location and existence of monuments and boundary lines. They are not conclusive, however, and may be reviewed by all courts in cases where their correctness is called in question. But the report of a commission of surveyors appointed, under a statute providing for such appointment, to establish lost or disputed corners and lines, where confirmed by the court making the appointment, is final and conclusive upon the parties to the proceedings and their privies.'

In trespass to try title to land, the record of a survey by the county surveyor, though it was not legally made, is competent evidence as tending to show the location of the line in dispute. Holliday v. Maddox, 39 Kan. 359; 18 Pac. Rep. 299 (1888).

The monuments or marks of the surveyor on the ground determine the true survey as against calls for adjoinders or courses and distances as returned; but, each block of surveys being separate and complete of itself, the call of a tract in one block for an adjoinder in another does not make the monument of the adjoinder the monument of the later block. Grier v. Pennsylvania Coal Co., 128 Pa. St. 79; 18 Atl. Rep. 480; 25 W. N. C. 85 (1889). Where defendant, after a denial of his motion to non-suit plaintiff on the ground that plaintiff had not shown that the corner between plaintiff and defendant was lost, and that the field-notes used by plaintiff's surveyor were not copies of any official survey or record, introduces a properly certified copy of the original field-notes, which are found to correspond with those used by plaintiff's surveyor, he thereby removes or waives the alleged ground of non-suit. Higgins v. Ragsdale, 83 Cal. 219; 23 Pac. Rep. 316 (1890).

On an issue as to the location of a true boundary of a given survey, one who assisted in the survey is competent to testify as to how it was made, so as to enable the court to trace the course of the surveyor; such evidence not contradicting the original field-notes of the survey. Smith v. Leach, 70 Tex. 493; 7 S. W. Rep. 767 (1888).

Ellis v. Wham, 91 Ill. 77.

LINES DIFFERENTLY LOCATED.

543

Where field-notes in a bond for title did not definitely cover the land conveyed, but it appeared that the grantor had no other land in the same county on a certain creek, and the surveyor on trial identified the land as described by calls, and the court based its finding, as to the identity of the land, on other evidence, an objection to such evidence and finding, without pointing out the reasons, will not be considered. Sickels v. Epps (Tex.), 8 S. W. Rep. 124 (1888).

In an action to determine the title to land of which the boundaries are in dispute, it is error to permit surveyors to give their opinion to the effect that, when the land was originally surveyed, only one line of the survey was actually run. Randall v. Gill, 77 Tex. 371; 14 S. W. Rep. 134 (1890).

Where the testimony as to the location of a boundary line is very conflicting, it is proper for the court to determine the boundary according to the evidence of a surveyor who has made an actual survey of the premises. Harrison v. Rowley (Ky.), 14 S. W. Rep. 359 (1891).

In an action to enjoin defendants from mining on plaintiff's land, the testimony of surveyors appointed by the court for the purpose of determining the line between the lots of plaintiff and defendants, that they had made a careful survey, commencing at a recognized point at a considerable distance from the lots in dispute, and had run the line with a transit, being guided, as far as possible, by ancient landmarks, and by this survey had found that the shaft in dispute was on plaintiff's land, and proof of other surveys, with the same result, warrant a verdict for plaintiff, though there is evidence of other surveys by which the shaft was thrown on defendant's lot. Christian v. Wahl, 83 Ga. 395; 10 S. E. Rep. 220 (1889).

In an action for the conversion of a quantity of hay, each party claimed it as having been cut on his own land. A surveyor who had run the lines between tl e land of plaintiff and defendant testified that the hay was cut upon the land of plaintiff. The defendant testified that the hay was cut on his own land: Held, that the testimony of the surveyor was of greater weight than that of defendant. Herford v. Schulte, 37 Minn. 389; 34 N. W. Rep. 740 (1887).

§ S. Lines Differently Located by Different Surveyors.-It not unfrequently happens in actions of ejectment that controversies arise as to the location of boundary lines, the line having been differently located by different surveyors. In these cases the true location of the line is to be determined by the court or jury as a question of fact and in like manner as other questions of fact.'

Where two surveyors disagree as to the location of a boundary line, the verdict finding the line as located by one will not be disturbed, although from the evidence the location of the line by the other surveyor was the more likely to be correct. Loveridge v. Omodt, 48 Minn. 135; N. W. Rep. 564.

§ 9. Descriptions in Conveyances as Boundaries. Since the enactment of the English statute of frauds requiring all con

'Herpel v. Malone, 56 Mich. 199; 22 N. W. Rep. 283 (1885); Baker v. McArthur, 54 Mich. 139; 19 N. W. Rep. 923 (1884).

veyances of lands to be in writing, we naturally look for boundaries in the description of the lands conveyed. In the discussion of muniments of title we have seen that every conveyance must contain a sufficiently accurate description of the lands in order that it may be identified and its location definitely ascertained. The description referred to is generally though not always given in lines, courses and distances; that is especially the case in the older States; but where the government survey exists descriptions are generally made by reference to sections and subdivisions. In towns and cities, real property is generally described as lots and blocks by reference to plats and records.

§ 10. Certainty of Descriptions.-As a general rule of law parol evidence is not admissible to supply the deficiencies in the description appearing upon the face of the instrument of conveyance, but when the description is certain as far as it goes and there are two or more parcels of land to which it will equally apply, parol evidence is admissible to show which parcel is intended to pass by the conveyance. A description which is hopelessly uncertain renders the conveyance void and no title passes.*

Testimony of declarations of a grantor, before the execution of a deed, tending to establish a boundary other than that made by the deed as construed by the court on appeal, is inadmissible, as its effect would be to convey land by parol in contravention of the statute of frauds. Harris v. Oakley, 54 Hun, 635; 7 N. Y. Sup. 232 (1889).

§ 11. Descriptions Other Than by Metes and Bounds.-It is a sound and reasonable rule that whenever land is occupied and improved by buildings or other structures designed for a particular purpose, which comprehends its practical, beneficial use and enjoyment, it is aptly designated and conveyed by a term which describes the purpose to which it is thus appropriated."

'Putnam v. Bond, 100 Mass. 58; Ewing v. Burnett, 11 Pet. (U. S.) 54; Cole v. Lake Co., 54 N. H. 278; Hannum v. West Chester, 70 Pa. St. 372; Liffett v. Kelly, 46 Vt. 516; Hildebrand v. Fogle, 20 Ohio, 147; Morrison v. Wilson, 30 Calif. 347; Hoffman v. Riehl, 27 Mo. 554; Doe v. Martin, 4 T. R. 65; Burton v. Dawes, 10 C. B. 261; 19 L. J. C. B. 302.

? United States v. King, 3 How. (U. S.) 773; Presbrey v. Presbrey, 13 Allen (Mass.), 283; Baily v. White, 41 N. H. 337; Shackleford v. Baily, 35 Ill. 391; Campbell v. Johnson, 44 Mo. 247; Walters v. Breden, 70 Pa. St. 238.

Johnson v. Rayner, 6 Gray (72 Mass.), 110 (1856); 3 Washburn on Real Property, 336.

METES AND BOUNDS.

545

"" town pond"

The terms "house," "barn," "mill," "cottage,' or "wharf," are familiar instances of conveyance of lands by general terms of description, applicable only to the purpose for which the land is used at the time of the grant.'

Sir Edward Coke laid down the rule that "stagnum,” in English a pool, doth consist of water and land, and therefore by the name of stagnum, or a pool, the water and land shall pass also,”2 and so the law has remained to this day.3

A description of land in a deed as "the Sellars Tract" is not too vague to admit of evidence aliunde of its location, for the purpose of establishing a corner. Euliss v. McAdams (N. C.), 13 S. E. Rep. 162 (1891).

A deed of "one-eighth of the undivided 1414 acres of land known as the Old John Whiteneck Farm,' in Waltz township, Wabash county, State of Indiana, to-wit, reserve No 4, section 31, township 26 north, of range 7 and 6," is not void for uncertainty of description where it appears that there was a tract of 1414 acres in said reserve known as the "Old John Whiteneck Farm," in which the grantor owned an undivided one-eighth interest. Trentman v. Neff, 124 Ind. 503; 21 N. E. Rep. 895.

A description as "All that certain plot of land (being about 100x150 feet) situated in said town of Lone Oak, and certain buildings situated thereon,

14 Cruise Dig. (Greenl. Ed.) Tit. 32. C. 21, § 40, note; Forbush v. Lombard, 13 Met. (Mass.) 109; Blake v. Clark, 6 Greenl. (Me.) 436: Whitney v. Olney, 3 Mason (U. S. C. C..) 280; Wooley v. Groton, 2 Cush. (Mass.) 305. The grant of a "mill site" or a "mill privilege" carries the land itself with the use of the water and appendages belonging to the mill; Brace v. Yale, 4 Allen (Mass.), 333; Jackson v. Vermilyea, 6 Cow. (N. Y.) 677; Moore

V.

"well" aptly designates the soil cov ered by and used with it. It is artificial excavation and erection in and upon land which necessarily, from its nature and the mode of its use, includes and comprehends the substantial occupation and beneficial enjoyment of the whole premises on which it is situated. Johnson v. Rayner, 6 Gray (Mass.), 107.

Coke on Littleton, 5.

3 Upon a town plat there appeared a triangular tract of land, with its base of about 400 feet upon a lake. Nearly parallel to the lake shore, and about 109 feet distant southerly, the plat showed an alley or passage

Fletcher, 16 Me. 63; Crosby v. Bradbury, 20 Me. C1; 8 Washburn on Real Property, 333. The grant of a "house" passes the land on which it stands: Shep. Touchstone, 90. The grant of a "rope walk" will way of thirty feet in width over convey such of the grantor's land as is actually used with it: Davis v. Handy, 37 N. H. 65. A grant of a “dwelling house” and “* outbuildings belonging thereto," carries with it the land upon which they stand: Woodman v. Smith, 58 Me. 81. The grant of "a well" carries the land which it occupies. The term

the tract in question. On the plat, upon that part of the tract south of the alley or way, appeared the words Eagle Park.” Held, that the entire tract of ground must be considered as a whole, and as constituting "Eagle Park." Middleton v. Wharton, 41 Minn. 266; 43 N. W. Rep. 4 (1889).

same being used as a flouring, corn mill, and cotton-gin, and all fixtures and tools pertaining thereto," is sufficient, where it appears that it is " the only mill-house or gin there was in Lone Oak at that time." Harkey v. Cain, 69 Tex. 146; 6 S. W. Rep. 637 (1888).

A deed, after reciting that it was made at Fish river, in the province of West Florida, described the land as "a certain tract of land being and lying at aforesaid place of Fish river, province aforesaid, commonly known as · Ward's Old Place,' beginning at a creek which empties itself into the said Fish river, and known by the name of ‘Alligator creek;' thence south to a rock fronting on the bay of Mobile, calculating in said tract a superficies of 1,000 acres or thereabouts." Held, that the description was not so indefinite and uncertain as to exclude evidence of extrinsic facts to identify the land. Dorgan v. Weeks, 86 Ala. 329; 5 So. Rep. 581.

A description as follows: "200 acres of the Chas L. Harrison one-third league survey, on Wichita river, in Wichita county, Tex., to be run off by the surveyor of said county, fronting 475 varas on the river and back for complement of 200 acres to be taken out of my half of said survey, and begin at the upper or lower corner, and run with the upper or lower line of my survey for complement. Field-notes to be attached to this deed by said surveyor, and become a part of this instrument," sufficiently identifies the interest conveyed. Nye v. Moody, 70 Tex. 434; 8 S. W. Rep. 606 (1888).

A conveyance describing the land by lots, blocks, or government subdivisions, and adding at the end of the description, "also, together with all other lands that may not have been heretofore described belonging to said,” grantor, passes title to a lot not expressly mentioned. Clifton Heights Land Co. v. Randell (Iowa), 47 N. W. Rep. 905; Am. Dig. 1891, 1248.

A tax deed, describing the land as "3,788 acres of the Martin Flores. league," is void for insufficiency of description. Tram Lumber Co. v. Hancock, 70 Tex. 312; 7 S. W. Rep. 724 (1888).

§ 12. A Rule of Construction.-A conveyance of real estate will not be declared void for uncertainty of description when it is possible by any reasonable rules of construction to determine from the instrument what property it was intended to convey. A rational intention must be sought for, and the construction must be consistent with reason and common sense,' and when the language of the instrument admits of different constructions, each equally reasonable, the construction most favorable to the grantee or person taking the estate, must prevail. This rule is founded upon the reason that by the instrument it is assumed to have been the intention of the grantee

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