STORY, Circuit Justice.
The charge of the learned judge of the district court comes to this; that if the north line of the Bingham purchase was not coincident with the monuments on the land, granted by the commonwealth of Massachusetts to the towns of Taunton and Raynham, then the monuments were to govern, and not the Bingham line, ■and consequently, that the title of the defendant, under the towns of Taunton and Raynham, did not extend to the Bingham line, and the demandants were entitled to the gore or strip of land between that line and those monuments, under the grant to them by the commonwealth.
The argument on behalf of the defendant is, that the charge of the learned judge was erroneous, because it was the intention of the government, in the grant to Taunton and Raynham, to make the southern line thereof coincident with the Bingham line; and that it is consequently the duty of the court to give effect to that intention, although thereby the monuments actually on the land should be disregarded. But this is assuming the very point in controversy. I agree, that, in this case, as in others, arising upon the construction of written instruments, the court are to carry into effect the intention of the parties, if, by law, it may be so carried into effect. But, then, how are Ve to ascertain the intention of the parties? Certainly not by parol evidence, varying the language, or by mere conjecture; but by the application of just rules of interpretation to the very language of the instrument itself. Now, it may be assumed, that the intention of the government in its grant was, that the southern Une thereof .•should begin at the Bingham line; but it was equally the intention of the government that the land granted should be bounded by the descriptive monuments stated in the grant. The government, from the survey, presumed, that the monuments were actually on the very boundary line of the Bing-ham purchase. This turns out to be a mistake, the monuments are at a considerable distance north of that line; and they leave .a gore or strip of land between the two tracts. It is the common case of a latent .ambiguity; and the real question is, what, in a case of mutual mistake in the descriptive words of the instrument, is to be done? Now, there can be but one of two courses adopted by a court of justice, under such ■circumstances; one of which is, to set aside the instrument, as inoperative, on account of the mistake, which would, in this case, be to defeat the object of both parties; the other is, to ascertain the real intention of the parties from the words of grant taken altogether, ex visceribus concessionis; and to give effect to that intention, notwithstanding the misdescription, if I may so say, cy pres, rejecting such of the descriptive words as are inconsistent with that intention, or are properly to be deemed subordinate, as accidents, and not as incidents thereto. This latter doctrine is the doctrine adopted by courts of law, upon the ground of the well known maxim, “ut res magis valeat, quam pereat.” There is no magic in particular instruments; the doctrine is equally applicable to all instruments, where the intention is sought for, and is to be executed. Thus, in a will, if there be a general intention expressed, and a particular intention repugnant to the former, the rule of interpretation, is, that the particular intention is to be rejected, and the general intention is to be carried into effect, as the predominant intention of the testator. So if there be a partial misde-scription in a will of the devisee or legatee, or of the thing devised or bequeathed, and yet the party or the thing can, by reasonable interpretation, be ascertained with reference to the extrinsic evidence, creating the doubt, courts of law, as well as of equity, will reject such part of the misdescription as is manifestly unessential, ¿nd give full effect to the main intention, deducible from the words. Now, precisely the same doctrine is applied to the interpretation of deeds, and other written instruments. If the descriptive words are, with reference to the actual facts, repugnant, or inconsistent with each other, and yet the intention of the parties can be ascertained, the misdescription will not vitiate the instrument; but it will' yield to the clearly ascertained intention. And it is only when the language, with reference to the actual facts, involves such fatal errors, and mistakes, as leaves the court without reasonable means of ascertaining the real intention, that the instrument will he treated as a nullity.
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STORY, Circuit Justice.
The charge of the learned judge of the district court comes to this; that if the north line of the Bingham purchase was not coincident with the monuments on the land, granted by the commonwealth of Massachusetts to the towns of Taunton and Raynham, then the monuments were to govern, and not the Bingham line, ■and consequently, that the title of the defendant, under the towns of Taunton and Raynham, did not extend to the Bingham line, and the demandants were entitled to the gore or strip of land between that line and those monuments, under the grant to them by the commonwealth.
The argument on behalf of the defendant is, that the charge of the learned judge was erroneous, because it was the intention of the government, in the grant to Taunton and Raynham, to make the southern line thereof coincident with the Bingham line; and that it is consequently the duty of the court to give effect to that intention, although thereby the monuments actually on the land should be disregarded. But this is assuming the very point in controversy. I agree, that, in this case, as in others, arising upon the construction of written instruments, the court are to carry into effect the intention of the parties, if, by law, it may be so carried into effect. But, then, how are Ve to ascertain the intention of the parties? Certainly not by parol evidence, varying the language, or by mere conjecture; but by the application of just rules of interpretation to the very language of the instrument itself. Now, it may be assumed, that the intention of the government in its grant was, that the southern Une thereof .•should begin at the Bingham line; but it was equally the intention of the government that the land granted should be bounded by the descriptive monuments stated in the grant. The government, from the survey, presumed, that the monuments were actually on the very boundary line of the Bing-ham purchase. This turns out to be a mistake, the monuments are at a considerable distance north of that line; and they leave .a gore or strip of land between the two tracts. It is the common case of a latent .ambiguity; and the real question is, what, in a case of mutual mistake in the descriptive words of the instrument, is to be done? Now, there can be but one of two courses adopted by a court of justice, under such ■circumstances; one of which is, to set aside the instrument, as inoperative, on account of the mistake, which would, in this case, be to defeat the object of both parties; the other is, to ascertain the real intention of the parties from the words of grant taken altogether, ex visceribus concessionis; and to give effect to that intention, notwithstanding the misdescription, if I may so say, cy pres, rejecting such of the descriptive words as are inconsistent with that intention, or are properly to be deemed subordinate, as accidents, and not as incidents thereto. This latter doctrine is the doctrine adopted by courts of law, upon the ground of the well known maxim, “ut res magis valeat, quam pereat.” There is no magic in particular instruments; the doctrine is equally applicable to all instruments, where the intention is sought for, and is to be executed. Thus, in a will, if there be a general intention expressed, and a particular intention repugnant to the former, the rule of interpretation, is, that the particular intention is to be rejected, and the general intention is to be carried into effect, as the predominant intention of the testator. So if there be a partial misde-scription in a will of the devisee or legatee, or of the thing devised or bequeathed, and yet the party or the thing can, by reasonable interpretation, be ascertained with reference to the extrinsic evidence, creating the doubt, courts of law, as well as of equity, will reject such part of the misdescription as is manifestly unessential, ¿nd give full effect to the main intention, deducible from the words. Now, precisely the same doctrine is applied to the interpretation of deeds, and other written instruments. If the descriptive words are, with reference to the actual facts, repugnant, or inconsistent with each other, and yet the intention of the parties can be ascertained, the misdescription will not vitiate the instrument; but it will' yield to the clearly ascertained intention. And it is only when the language, with reference to the actual facts, involves such fatal errors, and mistakes, as leaves the court without reasonable means of ascertaining the real intention, that the instrument will he treated as a nullity.
It is with a view to ascertain the intention of the parties to deeds and grants, that courts of law. for the purpose of founding just presumptions of the intention, have adopted certain rules of interpretation, not as artificial rules, built upon mere theory, but as the true results of human experience. When, therefore, they have held it to be a general rule, in the interpretation of the descriptive words of deeds and grants, that courses, and distances, and admeasurements, and ideal lines, should yield to known and fixed monuments, natural or artificial, upon the ground itself, they have but adopted the result of the common sense of mankind, because sources of mistake may more easily arise from the former than from the latter; and it is more likely that men may commit an [1007] error in courses, or distances, or admeasure-ments, or in references to ideal liens, such as those of surveys, than in monuments, and fixed and stationary objects, visible on the very land; and that in purchases and sales and bounties, the latter, as the best ordinary means of information, as well as of exclusive possession, are uppermost in their minds, and regulate their acts and intentions. Hence, a known spring, referred to as the corner of a boundary line, has always been deemed a more certain reference, in the understanding of the parties, than the ideal line of a survey of the land of another person, supposed to terminate at the same place. If they differ in point of location, the uniform rule is, that the spring governs as to the corner boundary, and not the survey. For the like reason, the plan of a survey, if it does not coincide with the actual monuments on the land, yields to the latter in point of certainty and proof of intention. The same ground is equally true as to courses and distances from monument to monument. If they differ, the monuments govern, and not the courses or distances; or, in other words, measurements yield to monuments, because they are more open to mistake, and less carefully observed, or significantly marked. I have dwelt the more upon this point, because the main stress of the argument has been rested upon the supposed intention of the parties; and is has been pressed upon the court, that the cases, which have been already decided, do not conclude the present case; or, indeed, if they otherwise would, that they are not founded upon satisfactory reasoning. In my judgment, all the cases, cited at the bar, turn upon one and the same general principle; and that is, to give effect to the real intention of the parties, whenever it can be ascertained from the words of the instrument, and the actual state of the facts; and if there is a misde-scription, to apply the common rules of interpretation to resolve the doubt, and to give effect to the predominant intention. Besides, we must treat the present case exactly in the same way, as if the grant, instead of being a bounty, had been a sale for a valuable consideration by the government. Suppose, then, that the north line of the Bingham purchase, instead of falling short of the monuments, had actually extended far beyond and within them, so as to have cut off one third of the granted land, owing to the monumental boundaries, what would have been ■ the legal result? Would the government, if the grant had amongst other covenants contained a covenant of warranty, be entitled to set up the defense, that the Bingham line was the boundary, and not the monuments; and hence, that there was no breach of the warranty? Clearly, such an interpretation would be held inadmissible; and yet it ought to prevail in that case, if it be allowed to prevail in the present case. Indeed, in cases of this sort, the principles of interpretation must be the same, whether the grant be a public grant, or a private grant. The boundaries, in case of a misdescription, must be ascertained precisely by the same rules, and none other, since the intention must be the same, whether the grant be public or private. It is essential to the protection of titles, that the interpretation should depend upon known, fixed, uniform principles, and not upon the conjectures of judges, or the nice balancing of possible intentions, or the supposed leading but undefined motives, in a particular grant. What ground is there in the present case, any more than in any other, to suppose, that the line of the Bingham purchase was, in the view of the parties, primary in importance, and that the monuments on the ground were to yield to that line, although it might be a mere imaginary line, wholly dependent upon courses, and distances, and quantity of acres, not included within any visible boundaries on the land, or otherwise precisely defined? I profess myself unable- to perceive any ground for such an interpretation. Suppose the Bingham line, truly run, had receded three miles south of the line, held by possession, would the grant to Taunton and Kaynham reach those three miles, and over all the intermediate space, although instead of a half township, it might then include a whole township? Or, under the like circumstances, would the line by possession govern, although it varied equally from the monuments and from the true line? The truth is, that the moment we desert the old rules of interpretation, we are off of soundings, and deliver over the titles to lands to interminable doubts. Here, if ever, the rule should apply, “via trita, via tuta.” For myself, I must say, that all the authorities, cited on the present occasion, are in my judgment harmonious upon this subject; and they differ only in applying the same general rule to the varying circumstances of each particular case, with a correspondent flexibility of force and adaptation.
The case of Newsom v. Pryor, 7 Wheat. [20 U. S.] 7, affords a strong illustration of the general doctrine. It was there said, by the court, that the general rule in all cases of this sort, is, “That the most material and most certain calls shall control those, which are less material and less certain. A call for a material object, as a river, a running stream, a spring, or even a marked tree, shall control both course and distance.” The same doctrine was fully recognized and acted upon in McIvers’ Lessee v. Walker, 9 Cranch [13 U. S.] 173; in Preston v. Bowmar, 6 Wheat. [19 U. S.] 380; in Barclay v. Howell’s Lessee, 6 Pet. [31 U. S.] 498; in Boardman v. Heed’s Lessee, 6 Pet. [31 U. S.] 328,— and, indeed, in all the subsequent cases, which have come before the supreme court of the United States. Decisions of a similar nature are to be found in the reports of many of the states of the Union; and with such a uniformity of interpretation of the doctrine, as is rarely to be found in any other class [1008] of cases. See many cases collected in 1 Mete. & P. Dig. tit “Boundaries,” pp. 473-47G; Greenl. Ev. § 301, and the authorities there cited. The authorities, cited at the bar, from the Maine and Massachusetts Reports, fully sustain the same position. The same rule pervades the 'whole current of the English authorities; and the leading cases will be found referred to, in Doe dem. Smith v. Galloway, 5 Barn & Adol. 43. In short, the maxim, “falsa demonstratio non nocet, cum de corpor^ constat,” is here applied with good significance and propriety; and the intention, which overrides the mistake in the description, is deduced from other demonstrations less fallible and more certain, both in character and importance. The case of Frost v. Spaulding, 19 Pick. 445, approaches very nearly in its main circumstances to the present case; and if an authority was wanting, it would certainly have a persuasive influence. But I prefer to place the present case upon the general ground already mentioned, as one sustained by solid reasoning, just interpretation, and general convenience.
The motion for a new trial must therefore be overruled, and judgment on the verdict be given for the demandant.
Judgment for the plaintiff.