Green v. M'Clellan , 4 H. & J. 200 ( 1816 )

Chase, Ch. J.

delivered the opinion of the Court. The court are of opinion, that the beginning of McClellan's First Venture depends on the true location of the tract of land called Come by Chance, which said beginning must be at the place or point where the north 200 perches line of Come by Chance terminates — the termination of the said tine to be ascertained by the jury according to the evidence, and on such allowance for the variation of the compass as the jury may find to be right and proper; it being the exclusive right and province of the jury to decide on the proper allowance to be made for such variation according to the proof.

The court are also of opinion, that the jury were bound in locating McClellan’s First Venture, to begin at the place where they found the north 200 perches line of Come by Chance terminated, and think the court below erred in giving the direction prayed by the plaintiff, as stated in the second bill of exceptions.

Tins court concur with that court in the opinion expressed in the first bill of exceptions.

Johnson. J.

This is an action to recover for a trespass allega] to have been committed by Green, the appellant, on the appellee’s land called McClellan’s First Venture.

In the trial of this cause two exceptions were taken on the part of the defendant — The first, because the court refused to permit the land commission, offered by him, to be read to the, jury; but the objection to the opinion pronounced by the ecu tí on the first exception appears to have been waved in this court.

The tract of land called McClellan's First Venture, calls to begin “at the end of the North 200 perches line of a tract of land called Come by Chance, it being the second line of said land.”

In the trial of the cause, the plaintiff offered evidence to prove “that at the time McClellan’s First Venture was taken up and surveyed, the taker-up thereof, in order to ascertain its place of beginning at the end of the second line of the tract called Comeby Chance, ran the two first lines of that tract from the place marked A on the plots, its admitted beginning, as the needle then pointed, without any allowance for the variation of the compass, and in the manner by him located on the plots in the cause; and thereupon prayed the court to direct the jury, that in fixing the true location of said tract called M‘ Clellan’s First Venture they are not hound to begin at the place where they may believe that the second line of Come by Chance terminates, according to what they may now find to be the true location of.that tract.” Which direction the, court gave. And the question for the consideration of this court is, Whether the opinion so pronounced was correct?

In examining this question I propose to establish three propositions-—

1st. That on principles of reason and justice it is correct that the land should be located as it was when taken up. 2d. That such a location is sanctioned by general princi-pies of law; and

3d. That no decision has been made by either the general court, or the court of appeals, conflicting with the right of making such a location; but that they have been of an opposite character.

On the first point I apprehend it must be conceded by all, that the land actually run out and designed to be purchased, should pass by the conveyance; and that if by any mistake, or inaccuracy of expression, a part should be left out, or more included, that a power ought to exist by which such errors might be corrected. For the land intended by both parties to be sold should pass by the deed or grant. If then it be correct, that the land intended tobe purchased should pass by the conveyance, are there any general principles of law which will prevent the location of the land in question from being made, as it was, when run out? M'Clellan’s First Venture was surveyed on the 20th of March 1776, and the contract then made, we are now called on to expound.

Nothing is more evident, than that every contract should depend on the law existing at the time it was made; and that the language in which a contract is expressed, should be construed to have the same meaning, as would have been given to it at the time it was used.

Let us examine the certificate in question by these, rules. In the year 1776 the surveyor, when he run the land, was bound to run the anterior tract, according to the expressions of the certificate' — By them he v/as governed; by them he was bound. If, at that period, an action of ejectment had been brought to recover any tract of land, containing courses and distances only, no other location would have been admitted, but such as they expressly pointed out; the least deviation from them, would have excluded the reading- of the patent at the trial of the cause.

ft was then not merely the custom to run as the needle pointed, but such was the. law of the land; and such would now have been the law, had the legislature not thought fit to have changed it.

If then in the year 1776, the beginning of MiClellan,s First Venture could only be ascertained by running the two first lines of Come by Chance at the point of the'uee-dle, and if such would have been the rule at this day, but for a Legislative interposition, our attention is naturally drawn to an examination of the law, by which that change has been made; and unless, by that law, we are compelled to give a location evidently different from that which was given when the land was taken up, it would seem to follow that no departure ought to be made from that survey.

But, so far from finding the legislature disposed to vary the survey, and thereby embracing within it, or excluding from it, land not originally included, we shall discover their sole object to have been to confine the survey to the original land, and to confirm the purchaser in the particular land taken up by him.

By the 12th section of the act passed at November session 1781, eh. 20, which recites, “that whereas land originally included by the courses and distances, expressed in the certificate of lands heretofore granted, is now excluded by the variation of the compass, which ought not to be taken from the person claiming under such survey or grant, it is in substance enacted, that on the chancellor being satisfied as to the feet, he shall refuse a patent to any other person, who hath, or may survey the land, and shall give a confirmatory granr, gratuitously, to the originaltaker-up.

The courts of law, although not in words, authorized to act on the subject, have gone further than the letter of the law, grounding their decisions on its equity and spirit. The chancellor was empowered to refuse to the one, and to grant to the other, but should the same not have been brough* before him, as was the case in a variety of instances, then, except for the liberal construction, placed by the courts on this law, a junior patentee, holding land comprehended in a survey, would have retained it, notwithstanding the same was included within the lines of an ancient grant, and only excluded therefrom by the variation of the compass.

The courts of law have referred the subject to the con-sideraron of the jury, and have left it entirely to them to determine whether there was any, and wiiat variation; and, if they find that the land was originally included, then the elder survey and grant prevailed. Those who are conversant with the rules of the land office, know that various regulations have been made, having it for their object to confine the certificate to the land actually taken up. For that end, calls to natural visible objects were inserted; but the agents of the Lord Proprietary, discovering that by them more land was included than was paid for, adopted several schemes to prevent it, and finally that of excluding all calls, except at the place of the beginning. If was during the existence of that regulation that the present survey was made; and as it calls for no visible object, as its commencement, but, only for the termination of a line of a former survey, the question is, How is this place to be found?

In examining this subject, we must constantly keep in mind, that the location of a junior tract,-is not intended to affect the true legal location of a senior, for it can never be permitted, that by having erroneously located a subsequent tract, the location of a prior one is in the slightest degree affected; and although in the case before the court, the plaintiff has laid down Come by Chante as it was run when M‘C'klhm,s First Venture was made, yet I wish it distinctly to be understood, that I do not mean, in the most .remote manner, to intimate that such is the true location.

The inevitable effect of causing a tract of land taken up before the year 1781, to run to, and be governed by, the location of a tractit may call for, when each of them contain courses and distances alone, will, if the first is established with what is termed full variation, be to include in the junior survey, land not originally included, and to exclude part that was; but if one degree for variation for 20 years, will bring die respective tracts to their original location, then the commencement of the junior survey, calling for the line of an elder for its beginning, ought to be ascertained, by correcting the elder tract for that purpose, to the date of the junior survey. Nothing is more evident than that such locations will embrace the land purchased.

It is not my intention to go minutely through the cases which have been cited; for as they have all been, so far as they bear on the present, question, in favour of the opinion pronounced by the court below, which opinion I consider correct, exclusive of authorities, I might here rest my judgment.

It has been considered as somewhat novel, to found the judgment of this court on a decision of the general court. This court, as every other judicial tribunal, must have some rules to regulate their decisions; aud where a case for the first time is brought before them, where can they look with more propriety for (he establishment of principles, applicable to the subject, than to the late general court; for my own part, 1 have no hesitation in declaring, that the judgment of that tribunal generally, but more especially on the subjects of grants of land, have more influence on my mind than any English authorities whatever. And the rules laid down by them, and acquiesced in for a length of' time, must be considered as the law by which, (sc far as they go,) real property has been held. I have examined the case of Webb’s lessee vs Beard, (1 Harr. & Johns. 349,) and feel myself bound to declare, that it is not so strong to establish the principle, that a junior, calling to begin at the end of a line of an anterior survey, is not bound by the true legal location of such survey, as, I believed at the time, when Hambleton and Tenant was determined. Any inaccuracy which I may have made, or shall in- future make, in the representation of a decision, will, as it is now, be readily acknowledged; and in the case of Tenant and Hambleton, it would have been a source of much regret if I believed such representation caused a different decision than otherwise would have been made. In that case the question depended on the location of a tract of land called Neglect — (his tract called to run a certain course and distance to another tract called Elliott’s Folly, 8,‘c. Ellioll’s Folly also had calls. The tract called Neglect was surveyed by the defendant in the cause, and in making such survey, he run Elliott’s Folly, and the tracts it called for, by course and distance, and thereby, as be apprehended, ascertained the vacant land. On the trial of the cause, the tracts called for by Neglect, were laitj, down by the defendant according to their calls, ami by the plaintiff as they were laid down at the time Neglect was taken up. The deposition rejected by the court went to establish how they were laid down; it was rejected, on the ground of being inconsistent with the grant. But that decision was reversed.

It will be perceived, that Neglect calls for no visible object. Í was under the impression that the Gleanings in the case of Webb and Beard, was in the same situation; and if so, the cases would have been strictly analagous. But in the latter case, though a tree is called for, and supported by some evidence, yet, my memory leads me to believe, that in that case it was determined, that if the proof as to the tree failed, that the beginning might be ascertained by running the tracts called for without their calls « — on the ground, that as they contained a double description, that that description should be received, which comported with the facts, as they existed, when the junior survey was made; for, if complete evidence existed as to the tree, the patent under which the plaintiff claimed could never have been obtained, if that fact had been disclosed to the chancellor — nor, do I presume, would the counsel who conducted the case on the part of the plaintiff, ever have brought the suit, with the previous knowledge, that the tree could be established.

It is not for me to say whether those decisions ought to have any influence with this court; that is submitted to their consideration. For my own part, I have long reflected on cases of this description, and am led to think that the opinion pronounced in Tenant & Hambleton, is calculated to carry into effect the intention of the contract, as it existed at the time it was made; that it is consistent with, and supported by, general principles of law, more especially that it accords with the law in operation at the period it was entered info, and is in conformity with the provisions of the act of 17'81, and that it is supported by the decisions which have been adjudged on the subject. 1 am, therefore, of opinion, that the judgment ought to be affirmed on both exceptions.

.IUBC-MEST B.RVEKSED, AST) PllOCEDEKBO AWAIIDEB.