Bruce v. Morgan

40 Ky. 26, 1 B. Mon. 26, 1840 Ky. LEXIS 65

• Court: Court of Appeals of Kentucky
• Decided: October 17, 1840
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

The fact assumed by the plaintiff in error, that is, that the line on or next to tho river Ohio was never marked or even actually run, does not, in this case, authorize the deduction urged by him as sufficient to show that the Circuit Judge erred in refusing to instruct the jury on the tria* of this ejectment, that if they believed that the line next to the river had never been run or marked, they were bound to regard the courses described in the patent as designating the true and only legal boundary. For the fact that this line alone, was neither actually run nor marked, only fortifies the deduction otherwise sufficiently manifest, (as decided on the same patent, in Bruce vs Taylor, 2 J. J. Marshall, 160,) that the Ohio with its sinuosities, was intended to be a boundary of the survey, and therefore, as such, a natural land mark, is more certain and permanent than any artificial demarcation, there is much more reason for making it control the erratic and repugnant calls for courses, in Marshall’s patent for 8200 acres, under which Morgan claims.

The general rule, that the actual boundary made by the surveyor, when ascertainable with satisfactory certainty, shall control references to course, applies emphatically and peculiarly to tho Ohio as a line of the sur- . J . vey m this case, and the rule recognized in Demmit vs Lashbrook, establishing a line according to course and disíancc as designated in the patent when there is no actual boundary variant (herefrom, is altogether inapplica- , , , , ,, . ° 1 r ble to such a case as this.

Wherefore the judgment of the Circuit Court is affirmed.