Page:North Dakota Reports (vol. 3).pdf/164

 not within its province to fix this uniformity. That can only be done by law. I do not care to go as far as to hold that the nature and extent of a usage may not be shown in any case in order that the court may deduce therefrom a custom, although this would generally be unnecessary, as courts would recognize a usage that was so universal, ancient, and certain that it would support a custom without evidence. But from the nature of our circumstances, no usage can exist in this state that would support the custom that must obtain before descriptions such as were used in this case can be upheld. Vast portions of our area yet belong to the general government. Some of it is yet unsurveyed; some counties but recently organized; others yet unorganized. It is not possible that in such localities any ‘usage’ as to real-estate descriptions, in the proper sense of the word, can have an existence. It cannot be that persons who seek to occupy these lands are required to take notice of a usage of which they have no knowledge in fact, and which never obtained in their locality. If once we hold such descriptions good, we establish the custom, and make it the law of the state forever afterwards, unless annulled by the legislature. This we ought not to do until our conditions change. The trial court erred in holding the description good.”

But counsel claim. that the description of the tracts involved here is sufficient if the symbol writing be ignored and rejected. They say in their brief: “Part of section 25, in township 141, of range $9, containing 80 acres, owned by James B. Power,” is sufficient, because, as they say, it would not mislead the owner. We think that whether such a description would mislead the owner or not might depend largely upon the number of 8o0-acre tracts belonging to him in the section; also upon the situation of the various tracts which he might own with reference to the quarter sections. Whether the 80 acres was or was not in a solid body would also be an important factor, we think. It is, in our judgment, important to keep in view the fact that others besides owners of land have a vital interest in descriptions of lands in