Chinoweth v. Lessee of Haskell

WRIT of error to the district court of the western district of Virginia.

This case was argued by Mr Doddridge, for the plaintiff in error, no counsel appearing for the defendant. He contended:

1. That Wilson does not prove the making of any actual survey of the three last lines, and all that he does prove is that the protracted them.

2. That in protracting the line D. E. he guessed at a course and distance which he supposed would reach Young's corner; which he missed about five miles.

3. That he only proves it to have been his intention to go to Young's corner. He did not in this certificate of survey call for a corner to Young, but only for two chesnut oaks in a country where there is scarcely any other timber.

4. That course and distance, as called for, may be corrected by other matters of description in the certificate and grant, by any natural call or description which may identify a corner, or render it certain; as 'two chesnut oaks, corner to Robert Young's survey of one hundred thousand acres, &c. the first, second, or third corner, &c.' Such correction of course and distance cannot be made by a secret, undisclosed intention that the two chesnuts he called for should be those at one of Young's corners.

5. The course and distances called for in the grant will locate the grant on the waters and water courses, precisely as stated in the grant. This appears by the surveyor's diagram, which with the grant is record evidence of this fact. Let the courses and distances called for be varied according to Wilson's secret intention, the case will be very different.

The grant calls to be on part of Clover run, on Cheat river, and to include the waters of Pheasant run. These descriptions suit either mode of locating the grant: but the grant calls to be on the waters of Tygart valley, and to include part of the waters of Hornback's run and the cherry tree fork of Leading creek. Whereas, as he would locate his grant, it will include not only part of the waters of Hornback's run and the Cherry Tree fork of Leading creek, but all these two streams and their waters, and even all Leading creek itself, of which they are small branches; and his survey will be, not on the waters of Tygart valley river, but on the river itself, crossing it four times.

Mr Chief Justice MARSHALL delivered the opinion of the court.