McNamee v. Townsend

3 Del. 88

• Court: Superior Court of Delaware
• Decided: July 5, 1840
• Status: Published

Opinion

The objection was waived;

But the Court remarked on the subject generally:—

The identity of a tree or other natural landmark can in the nature of things be proved only by visible reference to it on the spot; it must be distinguished with certainty from other trees or natural objects in the vicinity. The most natural and certain mode of doing this is by a view, where the jury are present and have the object pointed out to them on the ground, and there proved by witnesses or otherwise: a secondary mode of proof, admitted as sufficient in our practice, is by survey and plot; where a surveyor, under the authority of this court, goes with the sheriff of the county, and after notice to both parties, on the ground, views the natural or other bounds and abuttals, hears them proved on the spot, where there can be no mistake as to the object; and then delineates their position on a plot, for the purpose of showing the court and jury on the trial, what has been proved on the ground, or of applying the testimony which may be given at bar. The bounds, therefore, proved or admitted on the survey, or other objects by whichv it is intended to locate such bounds, ought to be delineated, for the purpose of proof at the trial; otherwise this mode of proof, secondary at best, is opened to the great danger of uncertainty in reference to the proof of that which is most important to land titles. As to other objects, not themselves landmarks, and the propriety of placing them on the plot, it is apparent that the same strictness need not be observed; and yet the necessity of their being delineated is just in proportion to their importance in proving the location of other objects which are bounds or abuttals.

A survey and plot made under the authority of the court, becomes to a certain extent evidence in the cause per se. Both parties have an interest in it. It is supposed to be made, and ought to be made, for the parpóse of showing the truth, and not merely with the design of making out a case for either party. The surveyor ought to place every thing on it which may be necessary to show the location of important objects proved on the ground, or by which he runs as landmarks; the omission to do so would defeat the very object of the survey; and the attempt to supply the omission at the trial, or to prove the location of natural objects as bounds in reference to the plot where they do not appear, opens the whole subject to the danger of proving these important matters without view; and without sui'vey and plot, which is the substitute for a view. Should the surveyor neglect to lay down proper objects, the parties are not without remedy: they may have their plots amended by application to the court; and they should not go to trial without seeing that the plots have such objects on them as is necessary to be proved at the trial.