Lewen v. Smith , 7 Port. 428 ( 1838 )

ORMOND, J.

— The question to be settled, in this case, depends on the true construction of the acts of Congress on this subject. The land system of the United States, seems to have been designed to provide, in advance, with mathematical precision, the ascertainment of boundaries, so as to dry up that fertile source of litigation, as far as practicable.

The act of Congress which contains the first conception of the system, and which is the ground-work of all succeeding acts on that subject, passed in seventeen hundred and ninety-six, prescribes the mode of surveying the public domain — (1 vol. Story’s Laws United States, 421.)

In eighteen hundred and five, Congress passed another law oa this subject. — the second. section of which furnishes the rules of construction, by which all disputes which may arise about boundaries, or the contents of any section, or sub-division of a section, shall be ascertained.

It is in these words: “The boundaries and contents of the several sections, half sections, and quarter sections of the public lauds of the United States,' shall be ascertained in conformity with the following principles, any act or acts to the contrary, notwithstanding :

“ 1. Ail the comers marked in the surveys, returned by the surveyor of the land south of the Tennessee, respectively, shall be established as the proper corners of sections, or sub-divisions of sections, which they were intended to designate; and the corners of half and quarter sections, not marked on the said surveys, shall he placed as nearly as possible equi-distant from those two corners, which stand on the same line.

“ 2. The boundary lines actually run and marked in the surveys returned by the surveyor general, or by the surveyor of the land south of the State of Tennessee, re • spectively, shall be established as the proper boundary lines of the sections or sub-divisions, for which they were intended; and the length of such lines, as returned by either of the surveyors aforesaid, shall be held and considered as the true length thereof; and the boundary lines which shall not have been actually run and marked as aforesaid, shall be ascertained by running straight lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the said boundary lines shall he ascertained, by running from the established corners due north and south, and east and west lines, as the case may be, to the water course, Indian boundary line, or other external boundary, of such fractional township.

“ 3. Bach section, or sub-division of section, the contents whereof shall have been, or by virtue of the first section of this act, shall be returned by the surveyor general, or by the surveyor of the public lands, south of the Tennessee, respectively, shall be held and considered as containing the exact quantity expressed in such return or returns, and the half sections and quarter sections, the contents whereof shall not have been thus returned, shall be held and considered as containing the one half, or the one fourth part, respectively, of the returned contents of the section of which they make part.”

The wisdom of these rules is apparent. Had they not been provided, great confusion would have arisen from the very causes which, at a hasty glance, would seem to constitute the perfection of the system. As the ori-gininal conception contemplated a division of the lands, on mathematical principles, without reference to natural objects as the termini, or tests by which to ascertain or settle a disputed boundary, it would have followed, in after time, when the corners and lines were obliterated, by accident or design, if a mistake had supervened in the original survey, that interminable disputes would have arisen about boundary lines. To prevent this, as far as possible, the law contemplates, that where the survey has been made and returned, that it shall be held to be mathematically true, as to the lines run and marked, the comers established, and the contents returned. Thus, each section, or separate sub-division of a section, would be independent of any other section in the township, and be governed by its marked and established boundaries. Should they be obliterated or lost, recourse must then be had to the best evidence, which can be obtained, showing their former situation or place.

The .question, then, in this case, is resolved into this: Is the land in dispute one of the established divisions, which the second rule provides for ? If it be, then the line actually run must govern, notwithstanding an error may have supervened in the original survey; which, however, is not shown in this case, as it does not appear that the marked line does not run due north and south, which would be its course, if mathematically correct.

It appears from the record, that the disputed line, is the boundary line of a fractional section. It is, therefore, a sub-division of a section, of which' the lines were run and marked by the United States surveyor, and returned to the land office. The line thus run and marked must be esteemed the true boundary line, in accordance with the principles here laid down. The purchasers of land from the United States, take by metes and bounds, whether the actual quantity exceeds or falls short of the amount estimated by the surveyor.

The argument most strongly urged by the plaintiff’s counsel, is, that where there is a discrepancy between the corners, as established by the United States surveyor, and the lines as run and marked, that the latter must yield to the former.

Without determining what weight the argument would be entitled to, in a case where a navigable stream did not cross the lines, it is clear, that in a case like this, where a stream of that description does traverse the section, it cannot apply. It would be subjecting the survey to a test, which was not applied in the first instance, and which the law did not require to be applied. In surveying the boundary lines of a section, where no river intervened, an error caused by a deviation from the true course, would be immediately discovered, when the surveyor came to close tlic survey. But if in running any of ihe lines of a section, a navigable river should intervene, the survey stops at that point on that line, and does not continue across the river. The fraction thus made, is complete in itself, and its contents can he ascertained. This was all the law contemplated, and that it was the course pursued, appears from the field notes of the survey of this fraction returned to the land office, which we have examined, and which are as follow:

“ Beginning at the N. W. corner, thence South 73, 50, to a post on the North bank of the river, for which—N. 80, W. 0, 17, box-elder—S. 66, E. 0, 18, do. Thence, with the meanders of the river, S. 74, East, 7 ch. 50 N.-32, East 10, a.—N. 9, W. 20—N. 10, East, 22 ch. N. 4, W. 24, 50, to a poplar on the South boundary of section 23, thence West 13 ch. 70, to S. W. corner, containing 100 55-100 acres.

It follows, that there was no error in the charge of the court, and the judgment of the court below must be affirmed.