The opinion of the court was delivered, by
Woodward, C. J.
— The question in this case was, whether the warrant and survey in the name of Isaac Miller — one of the series of twenty-five warrants issued in 1793 to Dr. Ruston — included the land in dispute. If it did, there was no vacant land at that place for the Heylman warrant and survey of 1855, under which the plaintiff claimed — if it did not, the land was vacant when the Heylman warrant was laid, and the plaintiffs were entitled to recover.
The main dispute had regard to the nature of the evidence by which this question of location was to be determined. The defendants below, who claimed under the Miller warrant, contended that it was to be located by its calls for adjoiners. There was a tract in the name of Peter Smith on the east, another of the series of twenty-five warrants — on the south Lawrence Lomison, an elder survey, whose location was well defined, and at the west, the deputy surveyor had written the word “ Starr” in his return, which it was said was a call for a surveyed tract in the name of Merrick Starr. Located by these adjoiners, Isaac Miller would take the land in dispute, but several of its courses and distances, and the configuration of the survey as returned into the land office, would essentially be changed. Notwithstanding these consequences, however, the defendants insisted upon its location by its calls; the word Starr being read Merrick Starr.
The plaintiffs, on the other hand, contended that the whole block of twenty-five surveys should be located by the marks on the ground, with no other reference to calls for adjoiners than such as would be consistent with the marks on the ground; and that it is immaterial that no marks are found on the Miller survey, since authentic marks are found on other tracts of the block sufficient to locate the whole block, and that these marks apply with decisive effect to Isaac Miller. They deny also that Merrick Starr was called for on the west of Isaac Miller, but if it was they say it was a mistake, and must be rejected in favour of the courses and distances as returned. In a word, the plaintiffs would locate the Isaac Miller by the marks on the ground of other tracts in connection with which it was surveyed and returned.
It seldom happens that a body of old surveys made in the mountainous districts of the state, can be so well located by marks on the ground as these twenty-five tracts of Dr. Ruston. Drafts have not been exhibited to us of all the tracts, but we have a connected draft of nine of them (not including William Lane, the leading warrant), and we have copies of the official return of these nine tracts, and from these, in connection with the testimony of the surveyors, there can be no difficulty in locating the exterior lines of the block. There were the older [425]*425surveys, Jeremiah Paul and Lawrence Lomison, lying on the south, with abundant marks on the ground to determine their location, and they were called for by Isaac Taylor and Isaac Miller, two of Dr. Huston’s block. Then, there was the pine corner of William Gilbert and Jesse Brooks, verified by all the surveyors, and other marks upon the northern boundary of Gilbert and the southern of Brooks, which counted to the date of these surveys, all which, taken in connection with the marks on the older surveys that were called for, determine with unusual precision the location of this block of surveys. And when we are dealing with blocks of surveys we must remember that the marks on any part of the block belong to each tract of the block. Interior lines were never run, and marks are not to be looked for on them ; but if marks are found upon the ground to establish an exterior line of a particular tract of the block, and we find other tracts returned with that same line, we are to presume it was adopted as the boundary of these tracts, no less than of the tracts which bear the marks. When the surveyor, for in stance, ran from the pine corner of Gilbert and Brooks to the stone corner of Lomison and Paul, his course for more than three hundred perches was S. 10 E., and his only other course for eighty-nine perches was S. 4J E., and these two courses carried him the whole width of the Gilbert and Miller tracts, and formed the western boundary of these respective tracts. No marks are found on these lines, but the pine and the stones are sufficient to locate them, unless we are to reject them for those on the eastern side of Merrick Starr. To do so would extend the side lines of Isaac Miller some two hundred perches beyond the official calls, would substitute several other courses and distances for the two that were returned as the eastern boundary of Isaac Miller, would reject the stone corner altogether, for the Merrick Starr does not go to it, and would distort the shape of the survey as returned into the land office.
When a younger survey calls for an older, the lines of the older, on the side on which the younger lies,' are what are called for, and hence the surveyor was not expected to run and mark new lines. His instructions, indeed, forbade him to do so. But if he protracted and returned lines that do not coincide with those of the older survey which is called for, they are to be rejected, and the lines of the older survey adopted unless marks on the ground forbid it. Such was the case of Quinn v. Hart, 7 Wright 337. In that case there were no marks to control the location of the Fishburn warrant (an individual warrant and not one of a block), and we decided that it must go to its calls, though it changed the official courses and distances. That case is supposed to rule this in favour of the'defendants below, and there would be considerable force in the argument, if this case, like that, were without marks of the younger survey. But, say [426]*426counsel in reply, there-are no marks on Isaac Miller the younger survey here, and therefore it must go to its call. The answer is, that though Isaac Miller bears no marks, the body of which it is a member is well marked, and if the defendants were engaged to establish it according to its official return, would they not insist upon appropriating those marks on the body to this member ? They would say the twenty-five tracts were located at the same time, by the same surveyor, adjoining each other, and returned into the land office with calls for such and such courses and distances, and there are marks on the ground to prove incontestably that some of the lines were run where the returns describe. Then they would argue, with conclusive force, that every tract of that body was to be located consistently with these incontestable lines; that the return of the surveys was a valid appropriation of the land, indicated by the official lines, and that all the official lines were proved by marks on the ground, which establish any of them. In this manner they would defend the location of the Isaac Miller where the official lines place it, and if the “ Starr” were pleaded against them as an adjoiner, they would say th,at whatever the deputy surveyor meant by writing that name on his survey, he could not have intended it for Merrick Starr, for that lay more than half a mile west of the westernmost boundary of Isaac Miller as returned. In a word, the marks of the body would be appropriated to the benefit of the particular tract, and thus, according to all the cases, Quinn v. Hart included, the marks on the ground would decide the location, rather than an equivocal and inaccurate call for an ad-joiner. .
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The opinion of the court was delivered, by
Woodward, C. J.
— The question in this case was, whether the warrant and survey in the name of Isaac Miller — one of the series of twenty-five warrants issued in 1793 to Dr. Ruston — included the land in dispute. If it did, there was no vacant land at that place for the Heylman warrant and survey of 1855, under which the plaintiff claimed — if it did not, the land was vacant when the Heylman warrant was laid, and the plaintiffs were entitled to recover.
The main dispute had regard to the nature of the evidence by which this question of location was to be determined. The defendants below, who claimed under the Miller warrant, contended that it was to be located by its calls for adjoiners. There was a tract in the name of Peter Smith on the east, another of the series of twenty-five warrants — on the south Lawrence Lomison, an elder survey, whose location was well defined, and at the west, the deputy surveyor had written the word “ Starr” in his return, which it was said was a call for a surveyed tract in the name of Merrick Starr. Located by these adjoiners, Isaac Miller would take the land in dispute, but several of its courses and distances, and the configuration of the survey as returned into the land office, would essentially be changed. Notwithstanding these consequences, however, the defendants insisted upon its location by its calls; the word Starr being read Merrick Starr.
The plaintiffs, on the other hand, contended that the whole block of twenty-five surveys should be located by the marks on the ground, with no other reference to calls for adjoiners than such as would be consistent with the marks on the ground; and that it is immaterial that no marks are found on the Miller survey, since authentic marks are found on other tracts of the block sufficient to locate the whole block, and that these marks apply with decisive effect to Isaac Miller. They deny also that Merrick Starr was called for on the west of Isaac Miller, but if it was they say it was a mistake, and must be rejected in favour of the courses and distances as returned. In a word, the plaintiffs would locate the Isaac Miller by the marks on the ground of other tracts in connection with which it was surveyed and returned.
It seldom happens that a body of old surveys made in the mountainous districts of the state, can be so well located by marks on the ground as these twenty-five tracts of Dr. Ruston. Drafts have not been exhibited to us of all the tracts, but we have a connected draft of nine of them (not including William Lane, the leading warrant), and we have copies of the official return of these nine tracts, and from these, in connection with the testimony of the surveyors, there can be no difficulty in locating the exterior lines of the block. There were the older [425]*425surveys, Jeremiah Paul and Lawrence Lomison, lying on the south, with abundant marks on the ground to determine their location, and they were called for by Isaac Taylor and Isaac Miller, two of Dr. Huston’s block. Then, there was the pine corner of William Gilbert and Jesse Brooks, verified by all the surveyors, and other marks upon the northern boundary of Gilbert and the southern of Brooks, which counted to the date of these surveys, all which, taken in connection with the marks on the older surveys that were called for, determine with unusual precision the location of this block of surveys. And when we are dealing with blocks of surveys we must remember that the marks on any part of the block belong to each tract of the block. Interior lines were never run, and marks are not to be looked for on them ; but if marks are found upon the ground to establish an exterior line of a particular tract of the block, and we find other tracts returned with that same line, we are to presume it was adopted as the boundary of these tracts, no less than of the tracts which bear the marks. When the surveyor, for in stance, ran from the pine corner of Gilbert and Brooks to the stone corner of Lomison and Paul, his course for more than three hundred perches was S. 10 E., and his only other course for eighty-nine perches was S. 4J E., and these two courses carried him the whole width of the Gilbert and Miller tracts, and formed the western boundary of these respective tracts. No marks are found on these lines, but the pine and the stones are sufficient to locate them, unless we are to reject them for those on the eastern side of Merrick Starr. To do so would extend the side lines of Isaac Miller some two hundred perches beyond the official calls, would substitute several other courses and distances for the two that were returned as the eastern boundary of Isaac Miller, would reject the stone corner altogether, for the Merrick Starr does not go to it, and would distort the shape of the survey as returned into the land office.
When a younger survey calls for an older, the lines of the older, on the side on which the younger lies,' are what are called for, and hence the surveyor was not expected to run and mark new lines. His instructions, indeed, forbade him to do so. But if he protracted and returned lines that do not coincide with those of the older survey which is called for, they are to be rejected, and the lines of the older survey adopted unless marks on the ground forbid it. Such was the case of Quinn v. Hart, 7 Wright 337. In that case there were no marks to control the location of the Fishburn warrant (an individual warrant and not one of a block), and we decided that it must go to its calls, though it changed the official courses and distances. That case is supposed to rule this in favour of the'defendants below, and there would be considerable force in the argument, if this case, like that, were without marks of the younger survey. But, say [426]*426counsel in reply, there-are no marks on Isaac Miller the younger survey here, and therefore it must go to its call. The answer is, that though Isaac Miller bears no marks, the body of which it is a member is well marked, and if the defendants were engaged to establish it according to its official return, would they not insist upon appropriating those marks on the body to this member ? They would say the twenty-five tracts were located at the same time, by the same surveyor, adjoining each other, and returned into the land office with calls for such and such courses and distances, and there are marks on the ground to prove incontestably that some of the lines were run where the returns describe. Then they would argue, with conclusive force, that every tract of that body was to be located consistently with these incontestable lines; that the return of the surveys was a valid appropriation of the land, indicated by the official lines, and that all the official lines were proved by marks on the ground, which establish any of them. In this manner they would defend the location of the Isaac Miller where the official lines place it, and if the “ Starr” were pleaded against them as an adjoiner, they would say th,at whatever the deputy surveyor meant by writing that name on his survey, he could not have intended it for Merrick Starr, for that lay more than half a mile west of the westernmost boundary of Isaac Miller as returned. In a word, the marks of the body would be appropriated to the benefit of the particular tract, and thus, according to all the cases, Quinn v. Hart included, the marks on the ground would decide the location, rather than an equivocal and inaccurate call for an ad-joiner. .
What would be a complete vindication of the location of Isaac Miller according to its official lines, supposing it assailed, is equally conclusive against the attempt to carry it beyond its official lines. It must lie where it was placed, and seeing that it was part of a block, it must lie where the block placed it; and of the location of the block the marks on the ground are the best evidence, in behalf of -which calls for adjoiners, even if unequivocal, must be rejected.
The learned counsel for the plaintiffs in error, foreseeing how the application of these undoubted principles of law would take away this land from the Isaac Miller, were constrained to argue, before they quit the case, that perhaps the call for Starr ivas a mistake, and that the twenty-five tracts were surveyed in a solid body, that excluded the possibility of vacant land between Taylor and Evans on the one side, and Gilbert and Miller on the other.
The supposed vacancy is a parallelogram, having, according to the official drafts, Jesse Brooks on the north, William Gilbert and Isaac Miller on the east, and a part of Isaac Taylor also on [427]*427the south. These five tracts, all belonging to the body of twenty-five, surrounded completely the supposed vacant land on which the Héylman warrant was laid. The Merrick Starr, which is mostly within the lines of Isaac Taylor, lies on the west of the vacant land. Now, as I understand the. argument of counsel, we are to disregard the Merrick Starr, and the vacant land, and are to bring Gilbert and Miller on the east and Evans and Taylor on the west, together, having for a common boundary an interior line, which was never run on the ground, but the course of which would be N. 10 W.
The objection to such a location is, that it would alter the official distances of some of the tracts very essentially, and violate the calls of each one of the surveys, without a mark on the ground to justify it. The distance from the western boundary of Gilbert and Miller to the eastern boundary of Evans and Taylor is, according to the official papers, two hundred and two perches, and to bring these tracts to a common boundary this distance must be added to the side line of either Gilbert and Miller, or of Evans and Taylor, or must be divided between them. I see no warrant for doing this except the general policy of excluding strips of vacant land in the midst of a body of surveys; but against this stands the fact, that every one of these surveys calls for “ Starr” in the very place where the vacancy is alleged. For instance, Jesse Brooks calls for “Starr” on the south, Taylor and Evans for “ Starr” on the east and north, and Gilbert and Miller for “ Starr” on the west. No one of these tracts calls for the other on that side.
Now, it is unnecessary to say that this was a valid call, and quite impossible to decide that the.surveyor meant to call for the Merrick Star survey, which, if really made before 1803, was not laid where these calls would place it. But is it not apparent that the surveyor did not mean to locate these tracts as adjoining each other ? That is now our immediate question.
If he had written the word “vacant” instead of “Starr,” he would not any more certainly have indicated an intention to keep the tracts apart, which the argument proposes to join together. In some way, not now explainable, the surveyor had got the idea of a prior appropriation of this land in the name of Starr, and so marked it on the return of his surveys of 1793; and whilst it does not prove such prior appropriation, it does prove that, unless we are are to make a survey for the parties, we cannot join together tracts that were placed two hundred rods asunder. Therefore, we can no more extend these surveys against the manifest intention of the surveyor, for the mere purpose of excluding vacant land, than we can allow the call for Merrick Starr (supposing that to have been the call intended) to overrule the marks [428]*428on the ground. The defence was no more sustainable in the one aspect than the other.
But the court is complained of for withdrawing the question from the jury. The learned judge ruled that the call for Starr “ ought not to control the other facts which bear upon the location ;” and that the western line of Isaac Miller was to run from the pine to the stones corner above mentioned. As these corners were proved beyond all contradiction, there was no error in assuming that the jury would find them, and the direction amounted only to a correct enunciation of the legal principle that official courses verified by marks on the ground, were to prevail over calls for adjoiners. This was scarcely withdrawing thé case. It was telling the jury, plainly, how to apply the evidence consistently with legal principles, but it left them to make the application. Location of surveys is generally a question of fact for the jury, for it generally depends upon conflicting proofs; but where the proofs are uncontradicted, and the event depends upon the principles of law which govern the legal effect of the proofs, it is the duty of the judge to declare the principles, and it is no fault that he does it plainly and intelligibly.
I have thus far considered the ease as if Merrick Starr were a regular and valid survey of 1785. The court below held that it was not surveyed until 1805, and that no survey in that name existed when the warrants of 1793 were laid, and this ruling is assigned for error.
We do not think the question is worth debating. Grant, if you please, that the court were wrong in treating the Merrick Starr as a survey of 1805 instead of 1795, still the conclusions we have reached above would be unaffected. They are founded, indeed, upon the very assumption that Merrick Starr was a survey of 1795. If it were so, the surveyor of 1793 could not have understood its location, or else he did not intend to call for it by his word Starr, for he certainly would never have returned the tract as resurveyed in 1805, as adjoining Evans, Brooks, and Gilbert. But it does not appear to us to be necessary to discuss the question, and it is enough to say that if the court were mistaken, which we do not affirm, it is a harmless error, for which the judgment is not to be reversed.
We cannot perceive that the plaintiffs-in error were injured by the rejection of the evidence alluded to in their first bill of exceptions. The offer was to prove that Brobst took possession “by the lines of the Merrick Starr survey.” Now, whether that was a survey of 1775 or of 1805, it was evidently appropriated land, and hence there was no room for the presumption authorized by the sixth section of the act of 27th April 1855 (Purd. 654).
Nor could there be a pre-emption right, both because Brobst, [429]*429if within the lines either of Merriclc Starr or Isaac Miller, was on land already appropriated, .and because, if not within those lines,, no such acts were offered to be shown as would constitute a settlement on whatever vacant land lay outside the lines of these two tracts. The clearing over these lines, or the cutting of timber beyond them, would not constitute a settlement. There was no offer to prove a residence on the vacant land, and without this the offer amounted to nothing, and was properly rejected.
The judgment is affirmed.