Pernam v. Wead , 6 Mass. 131 ( 1809 )

* Parsons, C. J.

Upon considering the facts in this [* 133] case, we have no doubt as to the motion. It must prevail, and a new trial be granted. When the facts were agreed by the parties, or proved at the trial, the result was a mere conclusion of law. And on these points the law has been long settled.

When the boundaries of land are fixed, known, and unquestion able monuments, although neither courses, nor distances, nor the computed contents, correspond, the monuments must govern. With respect to courses, from errors in surveying instruments, variation of the needle, and other causes, different surveyors often disagree. The same observations apply to distances, arising from the inaccuracy of measures, or of the party measuring ; and computations are often erroneous. But fixed monuments remain: about them there is no dispute or uncertainty; and what may be uncertain must be governed by monuments, about which there is no dispute.

In the present case, Sanborn and Collins’s land on one side, and Fletcher’s on the other, are fixed monuments. The land is bounded on them, and must extend in width from one to the other. If the contents had proved less than thirteen rods, yet the tenant could claim only to those monuments; and where the contents are found to be greater, he still shall hold to the same monuments. The jury therefore mistook the law; and the cause must be sent to another jury to correct the mistake.

New trial ordered.