Brown v. Huger

THIS case was brought up by writ of error from the Circuit Court of the United States for the western district of Virginia.

The facts are stated in the opinion of the court.

It was argued by Mr. Davis and Mr. Johnson for the plaintiffs in error, and Mr. Hull and Mr. Mason for the defendant, on which side there was also a brief by Mr. Black, (Attorney General.)

The counsel for the plaintiffs in error made the following points:

1. That the court withdrew from the jury all questions touching the proof of the patent and the particular boundaries thereof, though the defendants' cases consisted in showing the boundaries in the only copy of the patent produced to be erroneous, and the patent itself appeared to have issued irregularly, and without a precedent survey for the patentee.

Barclay et al. v. Howell's Lessee, 6 Peters, 498, 508, 511.

2. That the court withdrew from the jury the question, whether the fourth point of the defendant's patent, being in fact near and not on the river, was, under all the circumstances of the locality and survey, on or only near the river; or, in a word, whether the point 18, or the point G, or a point on the river at the end of a line from either 18 or G, perpendicular to the river, were the true fourth point, and whether the river or the right lines mentioned in the patent were the true boundary?

Barclay v. Howell, 6 Peters, 498, 508, 511.

3. Though it be conceded that, in many cases, a call for a point on a river, and then up or down the river to another point on the river, will in law be a call for a line with the river, yet this case is not within the principle; but, calling for a point near the river, it must be a question of fact where the point is, and how far from the river, as the law cannot determine the length of what parties meant by near. It must be for the jury to say, whether near means on the river, or is only a general description of the locality of the point, which is itself the real point contemplated by the patent.

Connelly v. Bowie, 6 Harris and Johnson, 141.

Rogers v. Moore, 7 H. and J., 141.

Hammond v. Ridgely, 5 H. and J., 245, 255.

Howard v. Ingersoll., 13 Howard, 414, 418.

Mr. Mason made the following points:

First Point. The instruction asked for by the defendant assumes that the question of boundary at issue between the parties depends on the construction to be given to the calls of the senior patent, which, being a question of law, was properly referred to the court.

Second Point. The question of boundary was, whether, upon the evidence before the court, the boundaries set out in the senior patent were to be taken as the artificial lines there stated by course and distance, or the natural boundaries, the two rivers referred to in the patent.

The senior patent granted by Lord Fairfax to Robert Harper, and dated April 25th, 1751, corrected by the original survey of the 4th April, 1750, and having such correction established by other proofs, for the boundaries in question, calls as follows:

'Beginning at a sycamore standing on the edge of Shenandoah river, and extending thence down the said river south, fifty-five degrees east, forty-four poles, north, sixty-six degrees east, seventy-two poles, to a sycamore standing at the point; and thence up Potomack river north, forty-eight degrees west, two hundred poles, to a chestnut tree standing near Potomack, opposite to a small island.'

The deed under which defendant claims from the devisee and heirs of the patentee to George Whahington, President of the United States, dated June 15, 1796, calls the land conveyed the 'Harper's Ferry tract,' and describes the premises (as to the boundaries in question) as bounded 'by the river Potomack on the outside, by the river Shenandoah on another side.'

It is contended, on the part of defendant, that by the calls of this patent, in construction of law, (as well interpreted by the deed last referred to,) the two rivers, Potomac and Shenandoah, are to be taken as the boundaries in question.

If this be so, it is conclusive of the case.

On this point, the defendant cites—

New York: Starr v. Child, 20 Wendell, 156; Trustees of the town of Kingston v. Louw, 12 Johnson, 252.

Massachusetts: Mayhew v. Norton, 17 Pickering, 357.

North Carolina: Hammond v. McGlaughan, Taylor's Rep., 136; Rogers v. Mabe, 4 Devereaux, 180; Hartsfield v. Westbrook, Haywood's Rep., p. 297.

Kentucky: Cockerell v. McQuin, 4 Monroe's Rep., 61; Bruce v. Taylor, 2 J. J. Marshall's Rep., 160.

Ohio: McCulloch v. Aton, 2 Ohio Supr. Court Rep., 308; Newsom v. Pryor, 7 Wheaton, 7 and 10.

Mr. Justice DANIEL delivered the opinion of the court.