Mahon v. Richardson

By the Court: In making the survey on which the patent issued, it was the duty of the county surveyor, under the statute, to connect it with the lines of the government survey. In performing this duty, he was the agent of the State, and was the only person authorized by law to perform it. The uncontradicted evidence shows that the survey made in the field commenced at a stake marked X, driven into the ground in the presence of the plaintiff, and the third course terminated at a stake in the line of the Buckalew ranch. The first-named stake has disappeared, but its exact location was fully established at the trial by the testimony of the county surveyor, and of the plaintiff himself. The stake in the line of the Buckalew ranch still remains, and was fully identified at the trial. There is incorporated into the patent the field notes of the survey, calling for these stakes, and the patent describes the land conveyed as that included in the survey. It does not purport to convey any land not so included, and as it calls for visible monuments on the ground, established at the time of the survey, and the precise location of which is clearly established by the evidence, in which there is no conflict on this point, there can be no doubt that the patent must be limited to the land actually surveyed in the field, and can include no other.

Judgment and order reversed, and cause remanded for a new trial.