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monuments and marked trees not only serve to show the lines of their own tracts, but they are also to be resorted to in connection with the field notes and other evidence, to fix the original location of a monument or line, which has been lost or obliterated by time, accident or design. The original monuments at each extreme of this line, that is, the one five miles east, and the other one mile west of the corner, sought to be established, are identified, but unfortunately, none of the original monuments and marks, showing the actual line which was run between townships 5 and 6, can be found; and hence we must recur to these two, as well as other original monuments which are established, in connection with the field notes and plats, to ascertain where those monuments were; for where they were, there the lines are.

Much of the following is from Putnam's U. S. Digest:

309A. A survey which starts from certain points and lines not recognized as boundaries by the parties themselves, and not shown by the evidence to be true points of departure, cannot be made the basis of a judgment establishing a boundary. 12 La. An. 689 (18.) See also U. S. Digest, vol. 18, sec. 23, Martin vs. Breaux.

a. A party is entitled to the lands actually apportioned, and where the line marked out upon actual survey differs from that laid in the plat, the former controls the latter. 1 Head (Tenn.) 60, Mayse vs. Lafferty.

b.

When a deed refers to a plat on record, the dimensions on the plat must govern; and if the dimension on the plat do not come together, then the surplus is to be divided in proportion to the dimensions on the plat. Marsh vs. Stephenson, 7 Ohio, N. S. 264.

C.

Courses and distances on a plat referred to, are to be considered as if they were recited in the deed. Blaney vs. Rice, 20 Pick. 62.

d. Where, on the line of the same survey between remote corners, the length varies from the length recorded or called for, in re-establishing intermediate monuments, marking divisional tracts, it is to be presumed that the error was distributed over the whole, and not in any particular division, and the variance must be distributed proportionally among the various subdivisions of the whole line according to their respective lengths. 2 Iowa (Clarke) p. 139, Moreland vs. Page. Bailey vs. Chamblin, 20 Ind. 33.

e.

Where the same grantor conveys to two persons, to each one a lot of land, limiting each to a certain number of rods from opposite known bounds, running in direction to meet if extended far enough, and by admeasurement the lots do not adjoin, when it appears from the same deeds that it was the intention they should, a rule should be which will divide the surplus over the admeasurement named in the deeds ascertained to exist by actual measurement on the earth, between the grantees in proportion to the length of their respective lines as stated in their deeds. 28 Maine 279, Lincoln vs. Edgecomb. Brown vs. Gay, 3 Greenl. 118. Wolf vs. Scarborough, 2 Ohio St. Rep. 363. Deficiency to be divided pro rata. Wyatt vs. Savage, 11 Maine 431.

f. Angel on Water Courses, sec. 57, says of dividing the surplus: "By this process justice will be done, and all interference of lines and titles prevented."

No person can, under different temperatures, measure the same line into divisions a, b, c and d, and make them exactly agree; but if the difference is divided, the points of division will be the same.

When we compare the distance on a map, and find that the paper expanded or contracted, we have to allow a proportionate distance for such variance. (See Table II, p. 165.)

309B. The system of dividing pro rata is embodied in the Canada Surveyors' Act, and quoted at sec. 306 of this work. It is also the French system.

By the French Civil Code, Article 646, all proprietors are obliged to have their lines established. In case it may be subsequently found that the survey was incorrect, and that one had too much, if the excess of one would equal the deficit of the other, then no difficulty would occur in dividing the difference.

If the excess in one man's part is greater than the deficit in the other, it ought to be divided pro rata to their respective quantities, each participating in the gain as well as the loss, in proportion to their areas. is the opinion of the most celebrated lawyers.

The following is the French text:

This

"Le terrain excidant au celui qui manque devra etre partage entre les parties, au pro rata de leur quantite' respective, en participant au gain comme a la perte, chacun proportionnellement a leur contenance; c'est l'avis de plus celebres jourisconsultes."

Adverse possession or prescriptive right, does not interfere when the encroachment was made clandestinely or by gradual anticipation made in cultivating or in mowing it.

For prescriptive right, see the French Civil Code, Article 2262:

Cependant la prescription ne sera jamais invoque daus le cas ou' la possession sera clandestine. C'est-a-dire lorsqu' elle est le resultat d'une anticipation faite graduellement en labourant ou en fauchant." Cours Complet. D'Arpentage. Paris, 1854. Par. D. Puille, p. 250.

α. No one has a right to establish a boundary without his contiguous owner being present, or satisfied with the surveyor employed.

The expense of survey is paid by the adjacent owners.

The loser in a contested survey has to pay all expenses. In a disputed survey, each appoints a surveyor, and these two appoint a third. If they cannot agree on the third man, the case is taken before a Justice of the Peace, who is to appoint a third surveyor.

The surveyors then read their appointments to one another, and to the parties for whom the survey is made. They examine the respective titles, original or old boundaries, if any exist, all land marks, and then proceed to make the necessary survey, and plant new boundaries. On their plan and report, or process verbal, they show all the detail above recited, mark the old boundary stones in black, and the new ones in red.

A stone is put at every angle of the field, and on every line at points which are visible one from another. The stones are in some places set so as to appear four to six inches over ground; but where they would be liable to be damaged, they are set under the ground.

b. Boundary Witnesses. Under each stone is made a hole, filled with delf, slags of iron, lime or broken stones, and on or near this, is a piece of slate on which the surveyor writes with a piece of brass some words called a mute witness.

Witness. He then sets the stone and places four other stones around it corresponding to the cardinal points. The mute witness or expression can be found after an elapse of one hundred years, provided it has been kept from the atmosphere. Ibid. p. 252 and 253.

The United States take pains in establishing a corner where no witness tree can be made. Under the stake or post is placed charcoal. The mound and pits about it are made in a particular manner. (See sec. 281.)

In Canada, if in wood land, the side lines from each corner is marked or blazed on both sides of the line to a distance of four or five chains, to serve as future witnesses.

309c. When the number of a lot on a plan referred to in the deed, is the only description of the land conveyed, the courses, distances, and other particulars in that plan, are to have the same effect as if recited in the deed. Thomas vs. Patten, 1 Shep. 329.

In ascertaining a lost survey or corner, help is to be had by considering the system of survey, and the position of those already ascertained. See Moreland vs. Page, 2 Clarke (Iowa) 139.

a.

Fixed monuments, control courses and distances. 3 Clarke (Iowa) 143, Sargent vs. Herod.

b. Metes and bounds control acres; that is, where a deed is given by metes and bounds, which would give an area different from that in the deed, the metes and bounds will control. Dalton vs. Rust, 22 Texas 133.

C. Metes and bounds must govern. 1 J. J. Marsh, Wallace vs.

Maxwell.

d. Marked lines and corners control the courses and distances laid down in a plat. 4 McLean 279.

e. If there are no monuments, courses and distances must govern. U.S. Dig., vol. 1, sec. 47.

f. So frail a witness as a stake is scarcely worthy to be called a monument, or to control the construction of a deed. Cox vs. Freedley, 33 Penn. State R. 124.

g. Stakes are not considered monuments in N. Carolina, but regarded as imaginary ones. 3 Dev. 65, Reed vs. Schenck.

h. Lines actually marked must be adhered to, though they vary from the course. 2 Overt. 304, and 7 Wheat. 7, McNairy vs. Hightour.

i. It is a well settled rule, that where an actual survey is made, and monuments marked or erected, and a plan afterwards made, intended to delineate such survey, and there is a variance between the plan and survey, the survey must govern. 1 Shep. 329, Thomas vs. Patten.

7. The actual survey designated by lines marked on the ground, is

the true survey, and will not be affected by subsequent surveys. 7 Watts 91, Norris vs. Hamilton.

309D. In locating land, the following rules are resorted to, and generally in the order stated:

1. Natural boundaries, as rivers.

2. Artificial marks, as trees, buildings.

3. Adjacent boundaries.

4. Courses and distances.

Neither rule however occupies an inflexible position, for when it is plain that there is a mistake, an inferior means of location may control a higher. 1 Richardson 491, Fulwood vs. Graham.

a. Description in a boundary is to be taken strongly against the grantor. 8 Connecticut 369, Marshall vs. Niles.

b. Between, excludes the termini. 1 Mass. 91, Reese vs. Leonard. b. Where the boundaries mentioned in a deed are inconsistent with one another, those are to be retained which best subserve the prevailing intention manifested on the face of the deed. Ver. 511, Gates vs. Lewis.

309E. The most material and most certain calls shall control those that are less certain and less material. 7 Wheat. 7, Newsom vs. Pryor. Thomas vs. Godfrey, 3 Gill & Johnson 142.

α. What is most material and certain controls what is less material. 36 N. H. 569, Hale vs. Davis.

b. The least certainty in the description of lands in deeds, must yield to the greater certainty, unless the apparently conflicting description can be reconciled. 11 Conn. 335, Benedict vs. Gaylord.

309F. Where the boundaries of land are fixed, known and unquestionable monuments, although neither course nor distance, nor the computed contents correspond, the monuments must govern. 6 Mass. 131. 2 Mass. 380. Pernan vs. Wead. Howe vs. Bass.

a. A mistake in one course does not raise a presumption of a mistake in another course. 6 Litt. 93, Bryan vs. Beekley.

b. When there are no monuments and the courses and distances cannot be reconciled, there is no universal rule that requires one of them to yield to the other; but either may be preferred as best comports with the manifest intent of parties, and with the circumstances of the case. U. S. Dig., vol. 1, sec. 13.

C. The lines of an elder survey prevail over that of a junior. Ib. 77. d. Boundaries may be proved on hearsay evidence. Ibid. 167.

e. The great principle which runs through all the rules of location is, that where you cannot give effect to every part of the description, that which is more fixed and certain, shall prevail over that which is less. 1 Shobhart 143, Johnson vs. McMillan.

309G. A line is to be extended to reach a boundary in the direction called for, disregarding the distance. U. S. Dig. vol. 7, 16.

a. Distances may be increased and sometimes courses departed from, in order to preserve the boundary, but the rule authorizes no other departure from the former. Ibid. 13.

b. If no principle of location be violated by closing from either of two points, that may be closed from which will be more against the grantor, and enclose the greater quantity of land. Ibid. sec. 14.

309H. What are boundaries described in a deed, is a question of law, the place of boundaries is a matter of fact. 4 Hawks 64, Doe vs. Paine.

α. What are the boundaries of a tract of land, is a mere question of construction, and for the court; but where a line is, and what are facts, must be found by a jury. 13 Ind. 379, Burnett vs. Thompson.

b. It is not necessary to prove a boundary by a plat of survey or field notes, but they may be proved by a witness who is acquainted with the corners and old lines, run and established by the surveyor, though he never saw the land surveyed. 17 Miss. 459, Weaver vs. Robinett.

C. A fence fronting on a highway for more than twenty years, is not to be the true boundary thereof under Rev. St. C. 2, if the original boundary can be made certain by ancient monuments, although the same are not now in existence. 11 Cush (Mass.) 487, Wood vs. Quincy.

d. The marked trees, according to which neighbors hold their distinct land when proved, ought not to be departed from though not exactly agreeing with the description. 3 Call. 239. 7 Monroe, 333. Herbert vs. Wise. Baxter vs. Evett. Rockwell vs. Adams.

e. Where a division line between two adjoining tracts exists at its two extremities, and for the principal part of the distance between the two tracts, and as such is recognized by the parties, it will be considered a continuous line, although on a portion of the distance there is no improvement or division fence. 6 Wendell 467.

f. If the lines were never marked, or were effaced, and their actual position cannot be found, the patent courses so far must govern. 2 Dana 2. 1 Bibb. 466. Dimmet vs. Lashbrook. Lyon vs. Ross.

g. Or, if the corners are given, a straight line from corner to corner must be pursued. Dig. vol. 1, sec. 33.

h. Abuttals are not to be disregarded. Ibid. vol. 12, sec. 4.

3091. Where there is no testimony on variation, the court ought not to instruct on that subject. Wilson vs. Inloes, 6 Gill 121.

α. The beginning corner has no more, or the certificate of survey has no greater, dignity than any other corner. 4 Dan. 332, Pearson vs. Baker.

b. Sec. 34. Where no corner was ever made, and no lines appear running from the other corners towards the one desired, the place where the courses and distances will intersect, is the corner. 1 Marsh 382. 4 Monroe 382. Wishart vs. Crosby. Thornberry vs. Churchill.

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