Spring v. Hewston

Courses and distances yield to natural monuments. In Sandifer v. Foster, 1 Hay w. (N. C.) 237, “ Gee’s patent began at the mouth of dividing, run thence north, thence east, thence south to a white oak; thence along the river to the beginning. This white oak stood half a mile from the river, and if the line be run in a direct course from thence to the beginning, a large part of the land described in the plaintiff’s grant will be left out of Gee’s patent; but if the river is deemed to be the boundary, the land described in defendant’s grant will then be included in Gee’s patent.” The river was held to be the boundary.

In Cherry v. Slade’s Admin. 3 Murph. 84, the description was: “ Beginning at Whitehurst’s corner at the letter A; thence east along Ward’s line eighty poles; thence south on his line 320 poles to the back swamp.” The first distance was more than doubled, and both courses were changed thirty degrees, in order to conform to Ward’s line. The case is an instructive one.

See, also, Harramond v. MeQlaughon, Taylor’s (N. C.) B. 84; Fix v. Johnson, 5 N. H. 524; Bruce v. Taylor, 2 J. J. Marsh. 162; and Brown v. Hager, 21 How. 318.)

Tested by the intrinsic aids to the construction of this instrument, the courses and distances yield to the natural monument. “ North nineteen degrees thirty minutes, west eleven chains, to the mouth of the creek; thence, ascending said creeh, north eighty-one degrees, west five chains,” etc., etc., and after a number of courses, “ crossing the creeh to the end of old wall on north side of the marsh.” This evidently means entering the creek from the south, and after ascending the creek, passing out of it, or crossing it to the north. All the intermediate courses are plainly intended to be ascending and following the creek.

Philip Q. Qalpin and James C. Cary, for the Bespondent.

The surveys made by Hoadley and Potter control. (Fice v. Hollis, 1 Maulé & S. 105; Down v. Cooper, 2 Q. B. 256; 15 Wend. 89, 90, 92, 97; 7 Cowen, 723; Columbet v. Pacheco, [44448] Cal. 397: Hastings v. Starlc, 36 Cal. 122; Sneed v. Osborn, 25 Cal. 620; 7 John. 245; 17 John. 29; 10 Wend. 104; 16 Wend. 281; 7 Johns. 283.)

By the Court : ' One of the descriptive calls, in the mortgage to Moss is “ north nineteen degrees, thirty minutes, west eleven chains, to the mouth of the creek (Islais Creek) ; thence, ascending the said creek, north eighty-one degrees, west five chains,” etc., giving certain courses and distances, until arriving at a certain point, and then “ crossing the creek to the end of old wall on the north side of the marsh.” If the courses and. distances from the mouth of the creek be followed as the true line, there will be excluded from the mortgage a strip of land between this line and the creek, which includes the premises in controversy.