Doksey, J.,
delivered the opinion of this court.
The point in this cause, most strenuously urged and relied on by the plaintiffs, is, that the beginning of the tract of land called Bold Venture, cannot be found by reversing the course and distance of its first line from the boundary called for at its termination, as expressed in the patent; because, by such reversal of the line, the beginning thereof is shown to be in deep navigable water, a great distance from the shore, and where the beginning tree called for, as at the commencement of the first line, could not possibly have stood at the date of the grant. As the decision of this question, if in favor of the plaintiffs, would be decisive of the present controversy under a decision of this court upon the appeal from the first trial of the case in the County Court, it appropriately, from its importance, is first entitled to our consideration. And to aid in its determination it' may not be amiss to lay down some propositions, and make some suggestions in elucidation of the question before us.
If a tract of land call to begin at a bounded tree by the side of the branch, and to run thence course and distance to a known boundary, and the beginning tree be lost, to find the commencement of the first line of the tract you must reverse the course and distance from the known boundary, called for at the end of the first line, and not elongate, nor shorten, the line to the branch; the expression as to the branch being merely descriptive of the general locality of the tree, not an imperative call locating the Spot where the tree stood. The words “ by the side of a branch,” thus used, are no indentification of a particular spot where the tree must have stood. The commencement of the line at any one of ten thousand different spots by the branch side, at great distances from each other, would comply with such a description of the beginning. Instead then of obtaining what is the leading object in the gratification of all calls, certainty in the location of grants of land, by adopting the principle contended for, that the line must be made to terminate at the branch, you establish a rule productive of the greatest uncertainty. If the words “ standing by the side of a branch,” be regarded as an imperative call fixing the termination of the [153]*153line where the boundary is lost, both course and distance may be disregarded to reach it; it controls them both. Suppose neither course nor distance will strike the side of the branch; by whom is the particular spot on the branch side for the termination of the line to be determined ? by the court or by the jury ? And by what principles of law or fact is the determination to be governed ? Suppose there be a point on the branch side which might be reached by the distance, but is wholly inconsistent with the course, in accordance with which the extension of the line to the branch side would expend ten times the number of perches, and include ten times the quantity of land expressed in the patent: which would you gratify, the course, or the distance ? The general rule is, that if there be a peremptory call to an object of length by a course and distance line, and the object can be reached by gratifying the distance, but violating the course, or by conforming to the course and disregarding the distance, the course must control the distance; the termination of the line being thereby fixed with greater certainty. As the termination of the line is at the point where the course first strikes the object called for; whereas, there might be various points in the object called for, equidistant from the beginning of the line to be run.
The word “ by,” when descriptively used in a grant as in the case before us, does not mean “ in immediate contact with,” but “ near” to the object to which it relates. And “ near,” is a relative term, meaning, when used in land patents, very unequal and different distances.
Suppose the boundary sought to be established, instead of being expressed as standing at the beginning of the first line of the tract of land sought to be located, was described as a boundary standing at the end of the first line, and consequently the beginning of the second line of the survey; and the boundary not being known, by running course and distance the line would terminate in navigable water, as deep, and quite as far from the shore, as the first line of Bold Venture reversed, does in the case before us. Would the patentee lose all benefit from his grant by such an occurrence? or would not the [154]*154court, in accordance with the dictates of justice, ut res magis valeat quam per eat, rather say, we will disregard what is said of the bounded tree as a means of showing the terminus of the first line, and will ascertain it by the course and distance, which by the patent, the line is expressed to run. The reason assigned for running the lines of lands to the boundaries called for at their terminations, instead of terminating them according to their courses and distances, is not exclusively that greater certainty as to the termini of such lines is thereby attained, but also because thus locating their grants is more beneficial to the grantees, and because it is rule of construction in expounding grants, to give them that interpretation which operates most strongly against the grantors, and in favor of the grantees. There is not the shadow of a reason for giving validity and operation to a patent whose second or subsequent boundary being unknown, the expressed course and distance thereto shall terminate in like circumstances to the alleged beginning of Bold Venture, that would not apply with equal force to a similar termination of the first line of a tract of land, reversed, to find its first beginning.
A deed or patent for a tract of land passes nothing unless the land described therein is susceptible of location, or in other words, unless the survey thereof can be made to close. And it is perfectly immaterial whether the impediment to location arise from an inability to ascertain the beginning of the first line of the land granted, or the end thereof; or the beginning or end of any other of its lines. In either case, no title to the land is transferred under the deed or patent, unless it be in the rare case of the lines of a tract of land crossing each other, or coming in contact, so as entirely to enclose a separate part of the tract, before the occurrence of the insurmountable obstacle to the enclosure of the entirety.
If a tract of land be granted by boundaries only, without courses and distances, as beginning at A, and running thence a straight line to B, thence to C, thence to D, and so on to the beginning. If the beginning or any subsequent boundary be lost, and its original situs be insusceptible of establishment by proof, [155]*155the entire tract of land is lost, and the grant thereby becomes inoperative and void. So, if a tract of land be granted by courses and distances only, without calling for any boundary or object save that described as standing at the commencement of its first line, and that boundary or object be lost and no legitimate proof can be adduced of the beginning or ending of any of its lines, the tract of land, thenceforth, becomes a nonentity : the grant for its conveyance, a nullity. But if a grant be made not only with courses and distances, but with calls for objects or boundaries at the ends of some of its lines, it has a principle of self-suslentation imparted to it, not possessed by either of the two first mentioned grants. And, therefore, if the beginning, and any, or all the boundaries, save one, are lost and incapable of being proved, the vitality of the grant still continues, its legal validity is as fully recognized, as if all its boundaries were still known and in being. And this principle of self-preservation does not owe its existence to any implied construction of the grants resulting from the dictates of justice, public policy, or expediency, but is the natural import of the express words of the grant, which declares not only that the lines are to be run to the specified calls, but that each line is to be run a specified course and distance. Prima facie then the terms and expressions of the grant are as fully complied with, by running the tract of land by course and distance, as if it were run in conformity to the calls. In the contemplation of the grant, both modes of running were to lead to the same points; the same results. Where a line of a tract calls for a boundary at its beginning, and a boundary at its end, and one of the boundaries be lost, the beginning or end of the line where it is alleged to have stood, is found with equal facility. And the same mathematical certainty is obtained whether you run the course and distance progressively to the end of the line, or retrogressively—that is reversely—to its beginning. With equal truth and precision, the desired object is accomplished in both modes of proceeding.
But suppose it were conceded that the words “ by the side of the branch” create an imperative call, and that the reversed [156]*156line must be elongated to reach it, or shortened to stop at it, what benefit would such a construction ultimately confer on the plaintiffs? Unquestionably none. Because then the reversed first line of Bold Venture, instead of terminating at red A, would be elongated to Long Island Point, at the water line of the north-west branch; and as effectually accomplish the objects of the defendants, as it would do in terminating at the red letter A.
It cannot be denied that a valid survey or grant of a tract of land may be made, without stating any natural object as being at the beginning of its first line, if there be boundary at the termination thereof, for example, the beginning of Bold Venture, as described in the patent of Rogers5 Inspection. Such, indeed, is the true import and condition of the grant of Bold Venture, rejecting the statement as to the bounded tree, alleged to stand at its beginning. And it is equally clear, that it forms no objection to the validity of a grant of land, that the place of its beginning is covered with water, whether navigable or otherwise, or that any of its lines run across such water. It is also undeniably established by authority, that if the beginning tree of a tract of land be lost, and the lines thereof have courses and distances, and one of then! also a known boundary, that the beginning of the tract may be found by reversing the courses, and expending the number of perches on the anterior lines. But it is alleged by the appellants’ counsel, that the beginning of a tract cannot be thus established, where it appears that the lost beginning could not have stood, at the time of the survey, at the point, thus ascertained by the reversed course and distance running. If there be such an exception to the general rule so well established, as to the mode of finding the beginning of tracts of land, whose beginning trees have been lost, it is incumbent upon him to produce the authority by which the exception is sustained. This he has wholly failed to do. And he is equally in default in not having shown, that upon reason, or the analogies of the law, such an exception ought to prevail.
Why is it that a plaintiff in ejectment in any case is unable to recover, by reason of his inability to prove his beginning tree ? [157]*157It is because, not having proved the beginning of his tract, he has lost all means of making or sustaining his location thereof, and consequently fails in his action. In reference to any other question, the inquiry rarely, if ever, would have been entered into, as to the truth or falsehood, possibility or impossibility, of the statements in the grant relating to the trees, alleged to be standing at the commencement of the first line of the tract. Conceding the whole statement, as to the beginning trees of Bold Venture to be false and impossible, what would it avail the plaintiffs below ? Nothing. The grant of the land is unconlroverted. By its course and distance lines, and remaining boundary, a location thereof can be established. Land so granted, when the boundaries are all known, is capable of two modes of location. The one by running' the lines to the boundaries called for, without regard to the -courses and distances ; the other is to run the land according to its courses and distances, without reference to its boundaries. Both these modes of running are in perfect consistency with every thing appearing upon the face of the grant. But lest there should be a diversity in the results, thus obtained by different means, and, in order, as is supposed, to give greater certainty to the locations of grants of land, and to give them that operation which shall be most beneficial to grantees, the courts of this Slate have determined that in all locations of lands the first mentioned mode of running shall, if practicable, be conformed to ; but if that be impracticable by reason of an inability, from any cause to prove the boundaries, the land shall be located by running its lines according to their courses and distances. It is no unusual thing for old surveys of land in this State, where boundaries are called for at the end of its lines, to contain an excess in quantity, sometimes twice, three times, or four times, as much land when run by its boundaries, as when located according to its courses and distances. The quantity, in such cases expressed in the patents, being always the same, with that ascertained by a course and distance running. That such discrepancies were the result of mistakes, nobody can believe; nay, it is a matter of history, and of notoriety, that they were [158]*158matters of design, and our courts might well say that running lands, (granted by the Lord Proprietary) according to their boundaries and calls, was more beneficial to¿ the grantees than a course and distance running. It would thence follow, as clear as mathematical demonstration can show any thing, that the lines of such surveys, when run course and distance, could not terminate at the points, where stood the boundaries called for as the termini of those lines. And hence, it is apparent, that if a boundary or beginning of such a survey were lost, no course and distance running, whether progressive, or retrogressive, could possibly conduct you to the point, where the lost boundary or beginning originally stood. According then to the doctrine contended for by the appellants as to Bold Venture, if in any of the surveys mentioned, a beginning or boundary thereof be lost, the whole tract of land is utterly lost, being incapable of true location, by any running of the course and distance lines, reversely, or progressively. To such a discovery the case before us certainly has given birth. Of it the venerated founders and expounders of the land law of Maryland, never appear to have caught a glimpse; or so many thousands, tens of thousands, or perhaps hundreds of thousands of acres of land, would not have been held for perhaps a century in opposition to such a principle by citizens of this State, who never dreamed of a taint or defect in their titles. In finding the beginning where, as is alleged, stood a bounded tree of a tract of land, or the terminus of one of its lines, which calls for a boundary that may have been lost, properly speaking, you do not resort to a course and distance running, either direct, or reverse, for the purpose of finding the spot where the lost tree or boundary in point of fact stood ; but to find the beginning or end of the line, as the case may be, wdiere it is stated to have stood. And such running, in contemplation of law, establishes the beginning of the tract or termination of its lines, whether in truth or in fact the beginning tree or bounded tree did stand or could have stood there or not: and this legal conclusion is wholly unaffected by the belief or disbelief of the court or jury upon that subject.
[159]*159If proof were required to show that course and distance lines are elongated when run from boundary to boundary, it is furnished by the first line of Mountenay’s Neck, which, by the patent, is expressed to run one hundred perches, but measures one hundred and thirty-three perches, when run from the boundary at M to that at N.
A great variety of other points have been mooted in the argument of this cause, on which it is not deemed necessary to express any opinion, as many of them are settled by this court, in the case of Casey’s lessee vs. Inloes et al., reported in 1 Gill, 430; and they are not presented for our adjudication by the record before us. It is deemed expedient, therefore, to proceed to the examination of the exceptions separately, and of each of the parties’ prayers, as slated in the last bill of exceptions.
In rejecting, (as appears by the first bill of exceptions,) the escheat warrant and certificate of Edward Fell for Bold Venture, when offered as proof that John Oulton died intestate, and without heirs, before the year 1745, the County Court committed no error. In Casey’s lessee vs. Inloes et al., this court decided, that an escheat grant is prima facie evidence that the land granted is liable to escheat at the date of issuing the escheat warrant, and not antecedently; “ the court regarding the statement of that fact in the warrant, upon the representation of the grantee, as being so avouched and verified by his payment of the purchase money, and acceptance of the patent, as to entitle it to the character of prima facie evidence. But in the case before us, the statement in the warrant was sustained by no such avouchment and verification; on the contrary, the County Court very properly regarded the statement as discredited, if not falsified, by the omission or refusal of the person to whom the warrant issued to consummate his title, and pay the required portion of the value of the land escheated, as evidence of his having discovered that there devolved upon the Lord Proprietary no title by escheat,—and, therefore, rejected the proffered testimony for the purpose for which it was offered.
[160]*160In rejecting the testimony offered by the plaintiffs in the second bill of exceptions, there is no error; there being at the date of the proceedings offered in evidence, no law authorizing or directing the same, or the recording thereof—the court below could not do otherwise than reject a paper, purporting to be a copy of the record, which, in the eye of the law, was no record at all. The court also rightly rejected the testimony, because it sought to establish the true location of Bold Venture, by running it in a way wholly inconsistent with the calls and expressions contained in its patent.
Of the County Court’s refusal to grant the first prayer of the plaintiffs, they have no reason to complain. It called for an instruction to the jury, that if they “shall find that the beginning of Bold Venture is not truly located on the plats by the defendants; or, if truly located, they shall find that the title to said tract became vested in the State, by escheat, in 1759, then the plaintiffs are entitled to recover.” To the first branch of the prayer, the plaintiffs were not entitled; because M, the beginning of Mountenay’s J\Teck, being admitted by the locations of both parties—and the patent of Bold Venture having declared it to be the end of its first line, the jury were precluded from any finding to the contrary. And the bounded tree called for at the beginning of the first line of Bold Venture being lost, it is matter of law, to be pronounced by the court—not a matter of fact, to be found by the jury, that the beginning of the tract of land was to be found by expending the number of perches expressed in the patent, as the length of the first line on the reversed course and distance thereof. In conformity to this principle of law, the beginning of Bold Venture had been ascertained and located- on the plats by the surveyor; and there was not the shadow of proof, or of suspicion, that such ascertainment had not been correctly made: under such circumstances, to have permitted the jury to pass upon the correctness of such a location of Bold Venture would, in effect, have submitted to the finding of the jury the soundness of the principle of law, under which the location had been [161]*161made;—or, in other words, it would have authorized the jury to determine a matter of law, not of fact.
In refusing the first alternative of the plaintiffs’ prayer, no error is perceived; and the principles settled by this court, in Casey vs. Inloes, 1 Gill, 430, show that the County Court were cleai’ly right, in refusing the prayer upon its second alternative.
By the act of 1745, ch. 9, the State granted no right which accrued to it, subsequently to the passage of that act of Assembly. An escheat grant, by the State, is no evidence of the existence of the facts constituting the escheat, anterior to the date of the warrant. Of course, if these principles are adhered to, the court below could not do otherwise than refuse to instruct the jury, that an escheat title accruing to the State in 1759, would entitle the plaintiffs to recover under the operation of the act of 1745.
The second and ninth prayers of the plaintiffs having been granted by the court below, they form no subject for revision under the present appeal.
The third prayer of the plaintiffs was rightfully rejected by the County Court, for a reason heretofore assigned in support of its rejection of their first prayer. The granting of it would, in fact, have conferred on the jury a discretionary power of finding the principle of law by which the beginning of Bold Venture was established, which principle it was the province of the court to declare—not of the jury to find as a matter of fact. And by granting the prayer, the jury might well have understood it to he (as in effect it would have been) an instruction to them, that there could be no true location of Bold Venture which did not locate its beginning entirely on the north side, of the northern water line, of the Palapsco river—thus giving to expressions in a grant, intended merely as generally descriptive of locality, a conclusive and restrictive import, which is clearly denied to them fay the unquestioned decisions of the highest judicial tribunals of Maryland. In proof whereof, it is deemed sufficient to refer to the case of Hammond vs. Ridgely, 5 Har. & Johns. 245.
[162]*162That the County Court, in refusing the plaintiffs’ fourth prayer, were right, is sufficiently shown by the positions asserted in the previous part of this opinion.
The court below did not err in refusing to instruct the jury, as required by the fifth prayer of the plaintiffs, that the defendants had offered no sufficient evidence of the location of Bold Venture; “ because they have offered no testimony of any endeavor being made to find the beginning of the tract; and because they have not located Whetstone Branch—that being the place on which said beginning is described in the patent to be, and where said beginning tree is sought for.” The first reason is insufficient, because the testimony, given by the defendants through the surveyor, in the absence of all impugning proof, relieves them from the obligation supposed to rest upon them; and had no such evidence been given by the surveyor, the plaintiffs, themselves, had offered all the requisite testimony upon the subject, by their location of the escheat grant of Bold Venture, called Rogers'1 Inspection, which shows that in 1759, the beginning tree of Bold Venture was lost, and could not be found; and that, at that time, the beginning of the tract was ascertained in the same manner, and was located at the same place, that the defendants have done on the plats before us. The second reason is also insufficient, because it was understood as being admitted by the parties in the cause, that Whetstone Branch was located. But suppose no such admission was made, or intended to be made, it interposes no objection to the defendants’ location of Bold Venture. The tree being lost for reasons hereinbefore stated, the spot where it stood is not so indentified by the description in the patent, as to enable the surveyor to locate it with any reasonable degree of certainty. It must, therefore, be rejected, as forming a less certain mode of finding the beginning of the tract of land, than by reversing course and distance from the first known boundary.
The sixth prayer of the plaintiffs is a that the defendants have not truly located Bold Venture, if the jury shall find from the testimony, that the line from M to A should have been run with allowance for variation, and has not been run so, and [163]*163that they must so find if they believe the testimony of Mr. Bouldin.’’’1
It cannot be denied, but that the jury are the proper tribunal to decide whether any, and what, variation ought to be allowed in the location of lands. But whether any, and what, degree of allowance for variation, ought to be made, are questions of fact, to be determined by the jury on the testimony upon that subject, adduced to them in the trial of the cause. If no such testimony be offered, the jury are not authorized to depart from the courses and distances expressed in the conveyances, by making any allowance for variation. In the case under consideration there was a total absence of all testimony in relation to variation, and consequently, the court could not have done otherwise than refuse the sixth prayer of the plaintiffs. But suppose it had been otherwise, and that there had been evidence before the jury which would have warranted them in making an allowance for variation, and that for the court’s error in this respect its judgment were reversed, this court would not send it back to the County Court, to be tried anew, because by no allowance for variation, which the jury could rationally have made, could the merits of the present controversy be in any wise affected.
From the views already expressed, it is apparent that the County Court were right in denying to the plaintiffs the instruction prayed for in their seventh prayer : which was “that the defendants have not truly located Bold Venture, inasmuch as they cannot run the fifth line of that tract, as they have located it on the plats further than to the river side, as designated on the plats by a black broken line, shaded blue, a little distant from Z, and south-westerly thereof.” The ground upon which only this instruction could have been claimed, must be that the fifth line of Bold Venture calls for a bounded oak as its terminus, which could not have stood in the navigable water where the fifth line is made to terminate, according to the defendants course and distance running thereof. Assuming the truth of the facts, on which the plaintiffs base their prayer, it is evident that upon the views hereinbefore expressed upon the [164]*164plaintiffs’ first prayer, that the instruction prayed for by the seventh prayer could not have been granted. But the same result is equally manifest upon another ground. The fifth line of Bold Venture simply calls for a bounded ash, without any reference or call to the river side or water. And there is no location or evidence in the cause to prove that where the said fifth line terminates, as run course and distance by the defendants, is not, and always has been, high and fast land, on the north side of the north-west branch of the Patapsco river; or, in other words, of “ Whetstone Branch,” where the bounded ash may well be presumed to have stood.
The County Court’s refusal to grant the plaintiffs’ eighth prayer is equally sustainable. There is no controversy as to the true location of the tract of land called Mountenay’s JYeck. It is a fact admitted by the pleadings in the cause, and which both parties are estopped from denying, that the beginning tree of Mountenay’s Neck, is truly located at the letter M ; and that the bounded tree called for as standing at the end of the first line of that tract, is truly located at the letter N. The patent of Bold Venture, in terms as explicit and positive as language can make them, calls for the bounded red oak, (which is the beginning tree of Mountenay’s Neck,) as the terminus of its first line, and to run thence, bounding on Mountenay’s land, the same course and distance as its first, to the bounded white oak (which stands at the end of its first line) of Mountenay’s land. These two bounded trees are the only boundaries called for in the patent of Mountenay’s Neck. Looking, then, to the unquestioned boundaries and locations of the first line of Mountenay’s Neck, and the clear and imperative call for the termination of the first line of Bold Venture, it appears most difficult to conceive how a question or doubt could arise as to the place where the first line of Bold Venture must terminate. But the patent of Bold Venture states its beginning to be at a bounded white oak, standing by the branch side, it being a bounding tree of Poultney’s Point: and the plaintiffs insist that Poultney’s Point and Long Island Point were one and the same tract of land; and that the only bounded [165]*165oak called for by Long Island Point, was the oak located at M, the beginning of Mountenay’s JYeck. And they pray the court to instruct the jury, that if they believe these facts, and that the said last mentioned oak was the tree referred to in the patent of Bold Venture, as a bounding tree of Poultney’s Point—then they are bound to find the beginning tree at M. Now, let us concede the truth of all the facts, which the jury are required to believe as the basis of the finding, claimed at their hands by the plaintiffs. What do these facts, when taken in connection with the admission as to the location of the first line and boundaries of Mountenay’s Neck, and the positive, unequivocal expressions of the patent of Bold Venture prove; what the irresistible inference; what the conclusive demonstration? It is that there is an error in the patent of Bold Venture; either in the description of the tree alleged to stand at the beginning of the first line of that tract of land, or in the boundary stated to stand at the end of that line. These descriptions are utterly irreconcilable: they cannot both be gratified or stand together; the one or the other must be rejected. It is impossible that both the beginning and end of the first line of Bold Venture should be at the same point, at the letter M. Under such circumstances, the court is invoked to declare that M is the beginning of Bold Venture; that the peremptory call of the first line of Bold Venture to terminate at the boundary at M, is to be, in effect, expunged from the patent. To justify the gratification of such an invocation to the court, not the semblance of an authority has been adduced. There is not a shade of difference between the weight to be ascribed to a call for a boundary, or matter of description thereof, when referred to as the beginning of a tract of land, or as the terminus of one of its lines. Under like circumstances, the obligation to gratify the same is equally imperative in both cases; there is, in this respect, no priority or preference between them. As the ground then, upon which, in the decision of the question raised by this prayer, the opinion of the court below must have been governed, let us enquire what are the probabilities of mistake as to the boundary called [166]*166for, or described as standing at the beginning or the end of the first line of Bold Venture? What consequences would result from the rejection of the one or the other ?
It is most obvious, from an inspection of the patents of Bold Venture and Mountenay’s JYeck, that the first line of the former of those tracts calls for the beginning tree of the latter as its terminus; and that the second line of Bold Venture was to run with and bind on the first line of Mountenay’s JYeck to its boundary at N; and that the third line of the former tract was to run with and bind on the second line of the latter tract to its termination. And it is a necessary presumption that, in making the survey of Bold Venture, on which its patent is founded, those boundaries and lines of Mountenay’s JYeck were known to the surveyor. In his calls for them, therefore, there could have been no mistake; they could have been no other lines and boundaries than they are represented to be in the patent of Bold Venture—none others could have been referred to by the surveyor.
But what is the evidence that the surveyor, in describing the beginning tree of Bold Venture, referred to, or meant to refer to, the beginning tree of Mounlenay’s JYeck? "When ' Jopking only to the patent of Bold Venture, no such reference could possibly be inferred. He describes the tract of land, called Bold~JV§Mtwre, as beginning at a bounded white oak, standing by the branch side—it being a bounded tree of Poultney’s Point. If he had known it to have been a boundary of Mountenay’s JYeck, in all human probability, he would have added to the words Poultney’s Point, the words “ and of Mountenay’s JYeck, or of Mountenay’s Land.” This omission to do so, is strong evidence that he had no design, belief or knowledge, that he was describing the beginning tree of Mountenay’s JYeck as the beginning tree of Bold Venture. The only evidence that he did so, is a call for the beginning of Mountenay’s JYeck, in the fifth line, of Long Island Point—the patent or certificate of which, for aught that appears, may never have been seen by the surveyor who executed the warrant under which Bold Venture was granted. But let it be con[167]*167ceded that the patent of Bold Venture does describe, as its beginning tree, the beginning tree of Mountenay’s Meek, is it not obvious that such description is founded in mistake or falsehood; and is, therefore, insufficient to overrule and control other calls and expressions in the patent of Bold Venture, inconsistent therewith? Assume but the single fact of falsehood or mistake in the description of the beginning tree of Bold Venture, as being “a bound tree of Poultney’s Point,” and every other word and expression in the patent may be harmoniously gratified, in perfect consistency with such an assumption. But assume the fact to be as contended for by the plaintiffs, that the beginning of Bold Venture is at the letter M, the beginning tree of Mountenay’s Meek, and see the consequences which would flow from it. You virtually expunge from the patent that clause in it, which directs that the first line of Bold Venture shall be run north, north-east fifty-eight perches, and terminate at the beginning tree of Mountenay's Meek; and that clause, which calls to run the second line of Bold Venture with the first line of Mountenay’s Meek, to the bounded tree at the letter N; and also that clause, which directs the third line of Bold Venture to run wfith and bind on the second line of Mountenay’s Meek, three hundred and twenty perches to the end thereof. And although it is apparent from the reading of the patent of Bold Venture, that it was intended to bind on and lie wholly clear of Mountenay’s Meek, you cause a large portion of the former to lie foul of the latter. Under such circumstances, it cannot be a matter of doubt that the court below were right—not only in refusing the plaintiffs’ eighth prayer, but would have been justified in giving an instruction to the jury that, according to the true construction of the patent of Bold Venture, its beginning could not be at the letter M.
That the tenth and eleventh prayers of the plaintiffs were properly rejected by the County Court, follows from what has been said in relation to their eighth prayer.
The court below were warranted in refusing to grant the plaintiffs’ twelfth prayer; because, after the refusal of the court [168]*168to grant the eighth prayer, for the reasons hereinbefore stated, there was no matter of fact in issue before the jury, to which the instruction sought could apply, or was material.
And were also warranted in refusing the plaintiffs’ thirteenth prayer; because, upon the pleadings and admissions on the plats in the cause, whether the beginning tree of Bold Venture originally stood at the letter M, was not a question of fact, but a matter of law, dependent upon the true construction of the patent thereof—as is hereinbefore asserted when examining the eighth: and, it is evident, that it was so regarded by the counsel of the plaintiffs, when he presented the eighth prayer for the court’s determination.
The refusal of the County Court to grant the plaintiffs’ fourteenth prayer has necessarily been sustained, by what has been said in relation to the eighth and thirteenth prayers.
. There is no error in the County Court’s refusal to grant the plaintiffs’ fifteenth prayer. Whether any, and what allowance for the variation of the magnetic needle, ought to be made when locating ancient surveys with course and distance lines, is undeniably a question of fact, to be determined by the jury, when testimony, legally sufficient to enable them to form an opinion thereon, has been adduced before them. And like all other matters of fact, the finding of the jury must be founded upon the proof in the cause. If there be no proof upon the subject, the jury are bound to find the locations, according to the courses and distances expressed in the grant, and can make no allowance for variation. It would be productive of great injustice and ruinous consequences to land-holders, if juries were authorized to make whatever allowance for variation their crude notions upon the subject might suggest—unaided and uncontrolled by experience, or the lights of science. In the case before us, no testimony whatever had been offered to the jury in relation to it;—and, consequently, a rejection was the inevitable fate of the fifteenth prayer of the plaintiffs.
The court below correctly refused to grant the plaintiffs’ sixteenth prayer, viz: “ That if the jury find from the evidence, that the location, of Bold Venture by the defendants is [169]*169correct, and from the warrant, certificate and patent thereof, that no intimation or statement was given to the Lord Proprietary that so much of the said tract, as they may find was covered by navigable water, was in fact so covered; and if the jury find that the said John Oulton purposely kept back, and fraudulently concealed the fact that so much of the said tract was covered by navigable water, and that it was in front of the elder tract, binding on or in the water, granted to Alexander Mountenay—then the patent to said Oulton was void, at least so far as it extended into navigable water. On whom the alleged fraud was perpetrated, or designed to be perpetrated, the prayer does not assert, but leaves that question as a subject of amusing speculation and investigation for the court. From the first part of the prayers making it an indispensable ingredient to the fraud—the failure to communicate to the Lord Proprietary the condition of the land granted, as regards navigable water—it might be inferred that the alleged fraud was supposed to have been committed upon the rights and interests of the Lord Proprietary;—-because, if it were a fraud upon the proprietor of Mountenay’s Neck, or of the community at large, the communication to the Lord Proprietary could not purge the grant of its fraudulent impurity; its only effect could be to render him a particeps criminis. But the grant of Bold Venture did not perpetrate the semblance of a fraud upon any body. The only rights which the proprietor of Mountenay’s Neck or the public had, in that which was granted by the patent of Bold Venture, are those of piscary and navigation, which remain unimpaired, and as perfect after the grant as they were before. If by the grant a fraud were practised upon the Lord Proprietary, he only, or those subsequently claiming under him, have a right to complain; it lies not in the mouth of the present plaintiffs to set up such a defence. It surely cannot be contended that a fair, hona fide, valid grant of 1695 is rendered fraudulent and void by the passage of the act of 1745, ch. 9; and so far from any fraud being perpetrated upon the Lord Proprietary by the grant of Bold Venture at the time it was made, it conferred upon him an essential bene[170]*170fit, by giving to him the full price of valuable land, for that which, at the time, was of little or no value.
There is quite as little ground for the plaintiffs’ complaint, that the County Court refused to give their seventeenth prayer. The Lord Proprietary had an indubitable right to make the grant of Bold Venture as he did. The rights of navigation and fishing being fully preserved, no existing just right of the grantee of Mountenay’s Neck was lessened or destroyed thereby; and thereof, therefore, the proprietor of Mountenay's Neck had no right to complain.
The refusal of the County Court to give the instruction sought by the eighteenth prayer, is entirely approved of. The first objection to the prayer is, that the expediency or necessity for granting it is not sufficiently shown; non constat, but that, by continuing the location of the water line of the north-west branch, with its sinuosities, beyond the letter Z, the sixth line of Bold Venture running its course and distance, might terminate at the river side, according to its calls; or that it might be made to do so, by elongating or shortening the same. But there is another objection to the instruction, which should have caused its rejection by the court. It introduces a novel and extraordinary principle in the ejectment law of Maryland, which might lead to endless confusion, uncertainty, and litigation, as to the locations of lands. If to produce accordance between a line and its call, you can change the running of the next preceding line, you may, upon the same principle, change the running of every antecedent line of the tract; and such changes will be in direct conflict with the express terms of the grant, and without any settled rule of law to govern them; but according to the notions of each person interested as to the best or most expedient changes, by which the accordance, he desires, may be effected. Such an innovation upon the sound, safe, principles of the ejectment law of Maryland has never received the sanction of this court; nor, it is believed, of any of the judicial tribunals of this State;— nor is it hazarding too much to say, that it is confidently expected that it never will.
[171]*171In granting the three prayers made by the defendants, the court below merely carried out some of the undeniable rules of our ejectment law, and sustained the principles decided by this court in the case of Casey's lessee vs. Inloes et al.
Concurring in the propriety of all that has been done by the County Court in its last trial of this cause, its judgment should be affirmed.
judgment affirmed.