Court Record McClintock vs Rogers

Source: Reports Of Cases Illinois
Written: 1849

Robert M'Clintock v. David Rogers.

Error to Pike.

1. Boundary—plat and field notes. In construing a patent from the United
States, which describes the land granted by the number of the section,
township and range, courts will look to the plat and field notes, made and
returned to the surveyor general, by the government surveyors, in order to
locate the land.

2. Same — lines — monuments. The lines actually run upon the ground by the
original surveyor, become the true external boundaries of all the lands sold
by the government, if they can be ascertained by reference to the monuments
erected upon the land by the surveyor.(1)

3. Same. The monuments erected upon the land are facts; the field notes and
plat returned by the surveyor, indicating course, distance and quantity, are
but description, which serve to assist in ascertaining those facts.

4. Same. Established monuments not only serve to show with certainty the
boundary of the tract upon which they are erected, but may be resorted to, in
connection with the field notes and other evidence, to fix the original
location of a monument or line which has become lost or obliterated by time,
accident or design.

5. Same — course and distance. The law can not satisfactorily determine, in
all cases whether course or distance shall control, when they do not
correspond; this must be determined by concurring testimony, and the
circumstance of each particular case. The one that convinces the judgment most
must be selected.

6. Same — town lines. The monuments erected at the two extremities of a
township line, are not entitled to a more controlling influence, in
determining the actual location of the intermediate line, than the section
corners establised along the line, if they can be found.

7. Same — lost line. Where a township line is lost, the monuments of the
adjacent sections may be resorted to for the purpose of ascertaining where the
lost line was actually run by the original surveyor.

8. Same — deflected line. A township line is not necessarily straight in all
cases; a deflected line, if established by satisfactory evidence, will be
adopted by the court as the true line originally run by the government
surveyor.

9. Same — quantity. Quantity, although the least reliable, and the last to be
resorted to, of all descriptions in a grant or deed, in determining the
boundaries of the premises conveyed, may some times be considered in
corroboration of other evidence. (2)

This was an ejectment, to recover the east half of the south-east quarter of
section thirty-one, township five south, range four west, brought by David
Rogers, the defendant in error, against Robert M'Clintock, the plaintiff in
error, and tried before Mr. justice Purple, without the intervention of a
jury, at the April term, 1848, of the Pike circuit court.

The declaration being filed, the defendant pleaded the general issue, upon
which issue was joined. At the September term, 1847, the cause was, by
consent, submitted to the court, for trial, and the evidence being heard, the
cause was taken under advisement. At the September term, 1847, the following
order was made, by consent:

"It is ordered by the court, that George M. Richards, of Morgan county, make a
survey of the township line, between townships five and six south, of range
four west of the fourth principal meridian, and make a plat, with metes and
bounds, of how much of the enclosure of the said defendant, Robert M'Clintock,
lies on the north side of said line, and on the south-east quarter of the
south-east quarter of section thirty-one, township five south, range four
west; and that when said survey is made and platted, the plat thereof shall be
returned by the said Richards to this court, at its next term. It is further
ordered, that the said Richards, before proceeding to make said survey, shall
take an oath before the clerk of this court, that he will, according to the
best of his skill and ability, well and truly run and ascertain said line, and
make a just and true plat thereof, and of so much of the enclosure of the said
defendant, Robert M'Clintock, as lies on the north side thereof. And by the
further agreement of the said parties, it is ordered by the court, that each
of said parties pay one-half of the costs of said survey."

At the April term, 1848, the following agreement was made between the
plaintiff and defendant:

"It is admitted by the parties in the above cause, that the corners of the
township line, between townships five and six south, four west, are truly
indicated by the letters A and B, on the survey made by George M. Richards, a
plat of which is filed herewith, and marked (X) and that the corners marked
with the letters A and B in said plat, are the true corners of the township
line between the townships aforesaid. It is further admitted, that the report
made by the said George M. Richards, marked exhibit (E) and filed in this
case, and all the statements contained in said report, shall be received in
evidence in this cause, and, upon the trial, shall have precisely the same
force and effect given to them — neither more nor less — that they would be
entitled to receive if the said Richards had been called and sworn as a
witness on the trial, and deposed to the same facts stated in said report. And
it is agreed by and between the parties aforesaid, that the above facts shall
be submitted to the court, without the intervention of a jury, and if, upon
the trial of the cause, the court shall be of opinion that the deflected line
established by the said survey of the said George M. Richards, is the true
line between the said townships, then the court shall enter judgment against
the said defendant for the land in his possession, north of said deflected
line, according to the said plat and report of the said George M. Richards.
But if the said court shall be of opinion that a straight line between the
corners indicated by the letters A and B, on the plat aforesaid, is the true
line between said townships, then judgment is to be entered against the said
defendant for so much land only as may be in his possession on the north side
of said straight line, etc. It was further admitted, that the township line
aforesaid has been run by David Johnson, county surveyor of Pike county,
Illinois, and that his survey corresponds with the survey above mentioned, as
made by the said George M. Richards. It was further admitted, that the dotted
line on the plat (X) made as aforesaid by the said George M. Richards,
indicates a straight line between the township corners A and B, denoted on
said plat; and that said dotted line has been run by Z. N. Garbutt and M. J.
Noyes, and that they concur with Richards and Johnson, in adopting the points
A and B, as the true corners of said township line, but differ with them in
running the line between said points; said Garbutt and Noyes establishing a
straight line between said corners A and B, as the true township line, instead
of the deflected line established by the said Richards and Johnson."

The annexed plat, marked (X) is a true copy of the plat of the survey made by
the said George M. Richards, and referred to in the above agreement as exhibit
(X). Accompanying said plat was the following report of the said Richards,
referred to in the agreement aforesaid as exhibit (R).

"In pursuance of the order made by the circuit court in and for the county of
Pike, and state of Illinois, at the September term thereof, a. d. 1847, in a
certain cause therein pending, wherein David Rogers is plaintiff, and Robert
M'Clintock defendant, after being first duly sworn, as directed by said order,
I, George M. Richards, of Morgan county, Illinois, report: that I made a
survey of the township line between townships five and six south, range four
west of the fourth principal meridian, as follows: I commenced at the township
corners between townships five and six south, range four west, and townships
five and six south, range three west, at a stake and rock previously set
there, and now ascertained by me to be the true corner, by actual survey, by
lines run from established corners, on the township line north of said corner,
and by the witness trees for said corner, the stumps of which were found by me
(said corner is marked A on the foregoing plat); thence west, with a variation
5° 48' east, 496.74 chains, to the township corner between five and six south,
five west, and five and sixth south, four west; said corner, as now made by
me, being the same previously established, and now verified by me, by finding
one witness tree now standing, and the roots of the other agreeing in course
and distance with original field notes, and by runs north of said corner on
township line; said township corner being marked B on the foregoing plat. This
distance between the township corners A and B, as shown by the original field
notes of the said township line, is 489.15 chains; showing a difference of
7.59 chains between length of township line, as run on the ground by me, and
as shown by the original field, notes, and showing that a distance had been
passed over on said township line by the original surveyor, which is not shown
by his field notes, and which made a reference to the corners and lines on the
north and south side of said township line necessary, in order to ascertain
where this excess of distance had been thrown by the original survey or, there
being no original corners or witness trees to be found upon said township
line, excepting those marked A and B, on the foregoing plat, at each extremity
of that line.

"I therefore returned east on said township line, and by measurement and
observation, I ascertained that five chains of this excess of length had been
thrown, in the original survey, into the width of section thirty-four,
township five south, range four west; said section measuring eighty-five
chains east and west on its south line, instead of eighty chains; the rest of
said excess being distributed over other parts of said township line. This
rendered it necessary to refer to the corners north and south of said township
line, in order to establish said line and the corners thereon, as originally
run by the United States surveyors; and in the course of the surveys necessary
to establish said line and corners, I became satisfied that the township line
between townships five and six south, range four west, was not run straight
across said township, and, consequently, should now be run and established
only as originally made, if its original position could be ascertained. To
determine how this had been run I commenced surveys from corners north and
south of said line, as shown by the foregoing plat; I went to the corner
between sections nineteen, twenty, twenty-nine and thirty, five south, four
west, and established it at a stake set by D. Johnson, the county surveyor of
Pike, named in another part of this record, and found by me to be correct, by
reference to one witness tree and the remains of the other (this corner is
marked C on the foregoing plat), thence 40.55 chains south, with variation of
7° 50' east, to corner established by reference to the stumps of the witness
trees, with the foot marks on them, found by me; thence south, with the same
variation, 40.50 chains, to corners between sections twenty-nine, thirty,
thirty-one and thirty-two, township five south, range four west, to corner, as
previously established, and found to be correct by the witness trees, one of
which is now standing, and the remains of the other found by me (this corner
is marked H on the foregoing plat), thence 40 chains, with a variation of 7°
42' east, to a stone set by the said D. Johnson; thence south, with some
variation, 40 chains, to a stone planted by me as the corner between sections
thirty-one and thirty-two, township five south, range four west (marked D on
the foregoing plat), thence I went to a rock at corner of sections five, six,
seven and eight, township six south, range four west, which I satisfied myself
was correctly planted as said corner, and which was agreed to by plaintiff and
defendant as the true corner (and is marked B on the foregoing plat), thence
north, with a variation of 8° 24' east, 81.56 chains, to the township line
near corner marked D on the foregoing plat, falling 17 links short of distance
called for by the original field notes. I ran this line with a variation of 8°
24' east, to make it parallel with the east line of section five, township six
south, range four west, as was originally done, and I made the offset, west
from corner D, at sections thirty-one, and thirty-two, township five south,
range four west, 54 links — the original field notes showing 61 links offset,
west from corner of sections thirty-one and thirty-two, township five south,
range four west, to corner of sections five and six, township six south, range
four west. I also went to corner of sections twenty-eight, twenty-nine, thirty-
two and thirty-three, township five south, range four west (marked F on the
foregoing plat), and established the corner by reference to witness trees, the
remains of which I found at a rock previously set there; thence, with a
variation of 7° 59' east, 40.83 chains, to a rock previously set and verified
by me, by witness trees found by me; thence, with the same variation, 40
chains, to township line, as shown in the foregoing plat at G; thence I went
to a corner between sections four, five, eight and nine, township six south,
range four west, at a rock, which I was satisfied was correct, and which was
agreed on as the correct corner by the said plaintiff and defendant; thence
north, with a variation of 8° 24' east, 40.91 chains, to a stake previously
set and now verified by me as the corner; thence, with same variation, north,
41.58 chains, to township line near G on the foregoing plat — exceeding
distance shown by the original field notes 17 links, and falling west of the
corners of sections thirty-two and thirty-three, township five south, range
four west, at G, on foregoing plat, 3.51 links (the original field notes not
showing what the offset was, from the corner of sections thirty-two and thirty-
three, township five south, range four west, as marked G on the foregoing
plat). This gives to sections five and six, in township six south, range four
west, their full complement, as called for by the original field notes, and
the computation of the quantity in them, as made by the original surveyor;
and, also, gives the complement, according to said original computation to
sections thirty-one and thirty-two, townships five south, range four west. A
straight line from A to B, across said townships, would throw a large excess
of quantity into sections five and six, township six south, range four west,
while sections thirty-one and two, township five south, range four west, would
fall a great deal short of their quantity, and the line between thirty-one and
thirty-two, township five south, range four west, would be 8° 30 chains
shorter than the distance called for by the original field notes, and the line
between sections five and six township six south, range four west, would be
made 8° 30 chains longer than is called for by the original field notes. The
mode adopted by me makes these lines agree with original field notes, on the
north, exactly, and on the south of the township line, within 17 links. I have
therefore established the township line between townships five and six south,
range four west, as follows: from township corner marked A on the foregoing
plat, west with a variation of 6° 57' east, to a rock set by me at the corners
of sections thirty-one and thirty-two, township five south, range four west,
at the point marked D on the foregoing plat, 405.12 chains; thence from said
rock at D, west, with a line of no variation, 91.62 chains, to township
corners between townships five and six south, range four west, and townships
five and six south, range five west, marked B on the foregoing plat; and
believe this to have been the line run by the original surveyor, and not a
straight line, as shown by the original field notes.

"From the stone placed by me at the corner of sections thirty-one and thirty-
two, five south, four west, an elm, eight inches in diameter, marked with a
blaze and two notches on each side, bears north 4.97 chains from said stone
marked D on the foregoing plat; and from this point I ran out the enclosure of
the defendant, Robert M'Clintock, which lies upon the north side of said
township line, and upon the south-east quarter of the south-east quarter of
section thirty-one, town five south, four west, and report that in said
M'Clintock's enclosure there are three acres and fourteen hundredths of an
acre on the north of said township line; and upon said south-east quarter of
the southeast quarter of section thirty-one, township five south, four west,
bounded as follows, to wit: beginning at said rock at the corner between
sections thirty-one and thirty-two, five south, four west, marked D on the
plat aforesaid; thence north ten chains seventy-seven links; thence west two
chains ninety-two links; thence south ten chains seventy-seven links; thence
east two chains ninety-two links, to the place of beginning.

"These surveys were made in the presence of the said plaintiff and defendant,
and were completed on the 23d day of September, a. d. 1847.

"The plat accompanying this report, marked (X) shows the township line as
established by me, at the courses and distances upon and adjoining said line,
and a plat, by metes and bounds, of section thirty-one, five south, four west,
and the part thereof now in the possession of the said defendant, Robert
M'Olintock, dated September 23, 1849.
"George M. Richards, Surveyor."

It was admitted by the defendant, Robert M'Clintock, that the plaintiff was
the owner in fee of the east half of the south-east quarter of section thirty-
one, five south, four west, and that the said Robert M'Clintock was in
possession of three and fourteen hundredths acres of said parcel of land, as
described by metes and bounds, in the report of the aforesaid George M.
Richards. The defendant then gave in evidence the following plat and field
notes, of the original survey, certified from the surveyor general's office
for the States of Illinois and Missouri:

a The notes of the line between sects. 4 and 5 call for intersecting the
township line at 8158 chains, but do not state whether the east or west of the
said township line.
b P. oak, 13 S. 10 W., 460. P. oak, 13 S. 77 E. 424.
c Hick. 15 south, 49 west, 29. Hick. 16 north, 25 west, 158.
d Post.
e Hick. north 78, west 57 links.
f Post on mound.

The field notes above referred to are in the words and figures following, that
is to say:

"Beginning at a post, corner of ranges four and five west, townships six and
six and five and five south, sections one, six, thirty-one, thirty-six, from
which a C. oak, ten inches in diameter, bears north sixty degrees, west twenty-
nine links; C. oak, fourteen inches in diameter, bears south sixty-three
degrees, east nineteen links; thence east on a random line between townships
five and six south, range four west, sections six and thirty-one, 489.15
chains; intersects the range line between ranges three and four, two hundred
and eighty-five links north of the corner, to sections one, six, thirty-one
and thirty-six, townships five and six south, ranges three and four west;
which is a post, from which a C. oak, 12 inches diameter, bears north seventy-
seven degrees, west 24 links, and hickory 12 inches diameter, bears south
three degrees, east 12 links. December 24th.

Thence west, between T's 5 and 6 S , R. 4 W. sections 1 and 36, on a true
line, 1.15 chains — creek, 15 links wide, course south.

14.00 chains, prairie;

40.00 " set half section posts — prairie;

80.00 " set post corner of sections 35 and 36, T's 5 S., 4 W.,
prairie — over prairie.
West, between T's 5 and 6 S., R. 4 W., sections 2 and 35.

15.00 chains, timber land;

35.60 " creek, 20 links wide, C. S.;

40.00 " set half section post, from which a hickory, 10 inches diameter,
bears S. 50°, E. 14 links, and a W. oak, 10 inches diameter, bears
N. 42°, W. 18 links.

53.00 " prairie;

80.00 " set post corner of sections 34 and 35, R. 4 W., T. 5 S.
— prairie — over prairie and barrens, timber, oak, etc.
West, between T. 5 and 6 S., R. 4 W., sections 3 and 34.

40.00 chains, set half section post — brushy barrens;

80.00 " post corner of sections 33 and 34, E. 4 W., T. 5 S. —
prairie, over brushy barrens and prairie. West, between township 5 and six
south, range four west, sees. 4 and 33.

40.00 chains, set half section post — prairie;

80.00 " set post corner of sees. 32 and 33, E. 4 W., T. 5 S. —
prairie — over prairie. West, between sections 5 and 32, T's 5 and 6 S., E. 4
west.

40.00 chains, set half section post, from which a hickory, 6 inches
diameter, bears 1ST. 53°, W. 49 links, hickory 4 inches diameter, bears S.
83°, E. 36 links. December 25th.

80.00 " set post corner of sections 31 and 32, B. 4 "W., T. 5 S.
— prairie — over bushy barrens and prairie oak. West, between townships 5 and
6 south, range 4 west, sections 6 and 31.

40.00 chains, set half section post—prairie;

63.00 " timbered land;

89.15 " intersects the range line between ranges 4 and 5, at the corner —
over prairie, barrens, timber, oak, etc."

The plaintiff, David Rogers, then admitted that the defendant, M'Clintock, was
the owner in fee of the north-east north-east quarters, section six, township
six south, range four west. This was all of the evidence offered, either on
the part of the said plaintiff or defendant. The court having duly considered
the same, found the issue in favor of the said plaintiff below. The defendant
below then moved the court for a new trial, because the verdict was against
the law and evidence; which motion was overruled by the circuit court, and a
judgment rendered in favor of the plaintiff, upon the finding aforesaid, for
three and fourteen hundredths acres of the lands mentioned in the declaration
aforesaid, and particularly described in the report of the said George M.
Richards, upon which a writ of possession was awarded, etc. The defendant
thereupon took his bill of exceptions to the opinion of the court, in finding
for the plaintiff, overruling motion for new trial, and in rendering judgment
for plaintiff, and assigns for error the said several decisions of the court.

Browning & Bushnell, for plaintiff in error: The only question presented for
decision in this case is, whether the township line which separates townships
five south, and four west, and six south, four west, is a straight or a
crooked one. We contend: 1. That under the laws of congress providing for
surveys of the public lands, and the various instructions, at different times,
given thereon, there can be no such thing as a deflected township line. The
act of 18th May, 1796; provided that the public lands "shall be divided by
north and south lines, run according to the true meridian, and by others
crossing them, at right angles, so as to form townships of six miles square."
Land Laws, Part 1, page 50. It is hardly necessary to remark that a square can
not be enclosed by deflected lines. The same provision is contained in the act
of March 26, 1804. Land Laws, Part 1, 104. And in the act of 11th February,
1805. Land Laws, Part 1, 119. It will be perceived from an examination of the
laws above cited, that township corners are to be first established, and
township lines first run, and that all subdivisions of a township are to be
controlled by, and conform to these first established corners and lines, and
that all lines, whether of a township, section or quarter section, are
required to be straight. The township line is to be a straight one, running
from corner to corner, the whole length of the township, and where the
township is to be sectionized, the very first command of the law is, to plant
the section corners one mile distant from each other, on the township line,
which has before been ascertained. See instructions from commissioner of the
general land office to the surveyor general. Land Laws, Part 2, 918, 941, 971.

2. The rights of the parties in the land in controversy, must be determined by
the original survey, made under the authority of the government, and returned
to the office of the surveyor general; and according to that survey, the
disputed township line was a straight one, running through the entire length,
from corner to corner; and it can not now be varied to suit the interests or
caprice of purchasers. To permit it to be done would be to annul the authority
of all the public surveys; obliterate the lines of demarcation between the
property of man and man, and open wide the door to confused, harassing, and
endless litigation. See plat and field notes from the office of the surveyor
general.

3. The original township corners at the extremities of the disputed line, are
found, recognized and admitted. There is no doubt or dispute about them, and
when the section corners upon that line are obliterated and can not be found,
the proper mode of re-ascertaining their position is, to begin at the corner
at the eastern extremity of the township line, and run by the field notes the
proper distance west, throwing any excess or deficiency of quantity on the
western side of the township. See Land Laws, Part 2, 919.

4. The only reason given by Richards, the surveyor, for fixing the section
corner south of a direct line between the ascertained township corners, is to
equalize distance and quantity. Now it is a settled rule in the construction
of grants, that both course and distance must give way to natural or
artificial monuments or objects; and courses must be varied, and distances
lengthened or shortened, so as to conform to the natural or ascertained
objects or bounds; and where the monuments are fixed, known, and
unquestionable, although neither course, distance, nor quantity correspond,
the monuments must govern. And in government surveys, especially where corners
are ascertained, they must control courses, distances and quantity. Wynne v.
Alexander, 7 Iredell, 238; Sturgeon v. Floyd, 3 Rich., 84; Bruckner's lessee
v. Lawrence, 1 Doug., 30; Fulwood v. Graham, 1 Rich., 491; Alshire's lessee v.
Hulse, Wright's Ohio Rep., 172; Avery's lessee v. Braum's heirs, ibid, 576;
Jackson v. Cole, 16 Johns., 262; Jackson v. Freer, 17 Johns., 31; Hagan et al
v. Campbell & Cleveland, 8 Porter, 31; Hallet et ah v. Hunt, 7 Ala. Rep., 905;
Lewen v. Smith, 7 Porter, 435; Newman v. Foster's heirs, 3 How. Miss., 391;
Surget v. Little, 5 Smedes and Marsh., 332; Campbell v. Clark, 8 Mo. 553.;
Hough v. Hoon et al., 4 Dev. and Bat., 230; Hare v. Harris, 14 Griswold, Ohio,
636; Pernam v. Wead, 6 Mass., 132; Preston's heirs v. Bowman, 2 Bibb, 495; 5
Cond., 195; Folger v. Mitchell, 3 Pick., 401; How et al v. Bass, 2 Mass., 382.

J. Grimshaw, for defendant in error: The point to be settled in the case is,
which is the correct line between township five south, range four west, and
township six south, range four west (see plat) A B or A D B, and correct
corner between sections thirty-one and thirty-two, township five south, range
four west; this being one of the points on that line, as originally run.
Defendant in error contends that line A D B is the correct line, and- corner D
the correct corner; that point D is the point originally established as
section corner of thirty-two, and as such must now be established as the
corner, although not on a right line between township corners.

1. It is a question of fact to be determined, how was this line originally run
by the surveyors of the United States government. If that fact can be
ascertained, it must determine this case. Bleeker's map of Hosick's patent
held never to be conclusive in opposition to true lines, founded upon his
actual survey. Jackson v. Joy, 9 Johns., 103. The map necessarily shows the
lots of equal size, and shows their relative locality. The legislature must
have contemplated that field book should accompany the map. Jackson v. Cole,
16 Johns., 260. The actual survey must be deemed part and parcel of the
description of lot. Ibid. The government might have had the surveys re-
examined before the patents issued; it is now too late to attempt to correct
mistakes. Jackson v. Cole, 16 Johns., 264. A proprietary surveyor held not to
be agent of people whose lands he surveyed, but of proprietor alone. Such
surveyor could not bar title by his return, which was vested by actual survey.
The courses and distances on the ground are the true survey. Lilly v.
Kitzmiller, 1 Yeates, 29; Yoder v. Fleming, 2 Yeates, 311. A line proved,
although deviating from a right line, must be the boundary. Lyon v. Ross et
ux., 1 Bibb, 466. Parol evidence admitted to show that course and boundary in
the survey and patent, are otherwise on the ground. Mageehan v. Adam's lessee,
2 Binney, 109; Wallace v. Maxwell, 1 J. J. Marsh., 451. Same points decided in
Hall v. Powell, 4 S. & R., 462; Philips v. Shaeffer, 5 S. & R., 215. Original
marked trees must govern, where they can be found. If not, courses and
distances must be resorted to, as the next best rule. Sumter v. Bracy, 2 Bay,
516; Chenoweth v. Lessee of Haskell, 3 Peters, 96. The original surveys
establish rights of parties, and must govern. May v. Baskin, 12 Smedes and
Marshall, 429, 430. The north-east and south-west corners of patent claim
established, held that law would fix north-west corner at intersection of
lines extended according to patent courses, from north-east and south-west
corners, unless some other point had been fixed on by original survey. Wishart
v. Crosby, 1 Marshall, 381; Thornberry v. Churchill et ux., 4 Monroe, 95.
Where there is an ascertained place of beginning, the grant must be confined
to boundaries given in the deed. Jackson v. Wilkinson, 17 Johns., 156; Jackson
v. Wendell, 5 Wendell, 146. The corners of sections on township lines were
made when the township was laid out. They became fixed points, and if their
position can now be shown by testimony, these points must be retained,
although not in a straight line from A to B. The township line was not run as
a single sight from A to B; it was run mile by mile, and these mile points are
as sacred as the points A and B. Land Laws, vol. 1, 50, 71, 119, 120. The
sections on the north and west side of the township receive excess and give
way in size, if there is any excess or deficiency in the township. They are to
close up to the township line wherever it was placed. See act of 1800, Land
Laws, vol. 1, sec. 3, p. 71.

A mathematical line is defined to be length without breadth: it exists only in
the mind. A surveyor's line has a local habitation: it consists of a series of
marked or established points on the ground, approaching a right line,
according to the skill and correctness of the surveyor and perfection of his
instruments. An actual township line consists of a series of section corners,
never in point of fact falling in a right line from township corner to
township corner. When these corners are gone, we resort to the next best
evidence to ascertain where they were originally placed. The best evidence in
this case of the position of the corner D, is its distance from the original
corners, shown on the plat, north and south of it, at the exact distances
called for by the field notes.

Testing the survey of Richards by these rules, it will be found to have been
made in accordance with them. He followed the original corners and lines, when
found, and when not found, courses and distances from field notes.

2. For acts of congress under which surveys in the Military Tract were made,
see act of May 18, 1796, Land Laws, vol. 1, 50, secs. 1, 2; act of May 10,
1800, ibid, 70, secs. 1, 2, 3; act of March 26, 1804, ibid, 104, sec. 1; act
of Feb. 11, 1805, ibid, 119, sec. 1, 2, vide sec. 2, 2d act of May 6, 1812,
ibid, 214. The act of April 29, 1816, ibid, 278, created the office of
surveyor general for Missouri and Illinois. These acts were directory to the
surveyors as government employees or agents; but if they disregard them, the
surveys they actually made must now be followed. See authorities cited above.

3. Statutes directing the mode of proceeding by public officers, are advisory,
and not essential to the validity of the proceedings themselves, unless so
expressed. Holland v. Osgood, 8 Vermont, 280. A statute specifying a time
within which a public officer is to perform an official act, regarding the
rights and duties of others, is directory, unless the nature of the act to be
performed, or the phraseology of the statute, is such that the designation of
time must be considered as a limitation of the power of the officer. People v.
Allen, 6 Wend., 486; Jackson v. Young, 5 Cow., 269.

4. The decision of the circuit court in this case, upon the evidence, should
have the same weight. As the law gives it the same effect as a verdict of a
jury, the court should not disturb it. Dawson v. Robbins, 5 Gilman, 72.

R. S. Blackwell, on same side: It is insisted that the only question for the
determination of this court is, whether the township line between five and six
south, four west, is straight or deflected. We do not decline the argument of
that question, but, at the same time, contend the real issue is as to the true
boundary between section thirty-one, township five south, four west, and
section six, township six south, four west. The acts of congress, it is true,
require a straight line. But this is only directory to the surveyor. Hunt v.
M'Henry, Wright, 599; Bayless v. Rupert, Wright, 634. "A mathematical line
never was run in making any survey, and is impossible to be ascertained with
perfect precision and certainty, by any human means." Cowen v. Fauntleroy, 2
Bibb, 261-2. It is, therefore, the established rule, that the line actually
run by the surveyor, as ascertained by the monuments erected by him upon the
land, are to control in all cases of disputed boundaries. The plat and field
notes returned by the surveyor, are not conclusive as to where the lines of
the survey were run, and the corners of each parcel of land established. The
survey is the original work; the plat is derived from, and intended to be a
faithful representation of it. If the plat fails to give a correct description
of the actual survey, the latter is to govern. Herbert v. Wise, 3 Call, 211,
top page; Conn v. Penn, 1 Peters' C. C. R., 511-12; Esmond v. Tarbox, 7
Greenleaf, 61; Cowen v. Fauntleroy, 2 Bibb, 261; Cleveland v. Smith, 2 Story,
288; Van Wyck v. Wright, 18 Wend., 168; Campbell v. Clark, 8 Mo., 553; Walker
v. Smith, 2 Barr. 43; Hall v. Tanner, 4 Barr, 244; Voorhees v. De Meyer, 3
Sandf. Ch., 614, cited 2 An. U. S. Dig., 61, sec. 1. Therefore, if the actual
survey, as ascertained by the monuments, show a deflected line, it is to be
regarded as the true one. Baker v. Talbott, 6 Monroe, 182; Baxter v. Evett, 7
Monroe, 333-4. Where was the township line in controversy actually run? It was
the duty of the surveyor to mark the township line, by erecting section
corners along that line. The plat and field notes show that this was done. But
the monuments have been destroyed, and no traces of them remain. How, then, is
the original location of the township line to be ascertained. It is obvious
that the next best evidence must be resorted to. Lewen v. Smith, 7 Porter,
535. It is insisted by the plaintiff in error, that the township corners are
to control, and that a right line must be run from corner to corner. This is
nothing more than a resort to the course called for in the plat and field
notes, which is the weakest and most unsatisfactory kind of evidence. 1
Richardson, 497; 1 Greenl. Ev., 309, sec. 301, note 2. Again, the township
corners are of no greater validity, in fixing the boundary of the survey, than
the section corners. Wishart v. Crosby, 1 A. K. Marsh., 383. Each section is
independent of every other section in the township, and must be governed by
its own marked and established corners and lines. Lewen v. Smith, 7 Porter,
435; Johnson v. Gresham, 5 Dana, 543-4. Where sections are bounded on one side
by a township line, and the line can not be ascertained by the calls of the
plat, it seems quite clear that if the corners of the adjacent sections can be
found, this is better evidence to locate the township line than a resort to
course merely. 1 Greenl. Ev., 369, sec. 301, note 2; 1 Richardson, 497. Where
by the terms of a survey a line commences at a known monument, and from thence
runs a specified distance to another monument, which latter can not be found,
the survey is limited to the distance specified to be ascertained by
admeasurement. Heaton v. Hodges, 14 Maine, 66; Galloway v. Brown, 16 Ohio,
428. This was the course pursued by Richards, in making his survey, and it was
the only principle he could adopt, in order to ascertain the true township
line. Calvert v. Fitgerald, 1 Litt. Sel. Cas., 391-2. By the application of
these principles to the facts of this case, the plaintiff and defendant are
secured in the enjoyment of their respective rights, and the precise location
of the disputed township line is ascertained and established.

The question as to where the township line was actually run by the government
surveyor, was a question of fact, and proper for the determination of a jury.
Dimmett v. Lashbrook, 2 Dana, 1; Cockrell v. McQuinn, 4 Monroe, 62-3; Doe ex
dem. Miller v. Cullum, 4 Ala., 576; Ott v. Soulard, 9 Missouri, 603-4; Newman
v. Foster, 3 How. Miss., 383. Where questions of fact are submitted to the
court below for trial, the decision of that court, upon the weight and effect
of the evidence, will not be set aside, unless it palpably appears that the
character of the evidence was misconceived. To induce this court to interfere,
the reason for a new trial should be very strong and urgent. Webster v.
Vickers, 2 Scam., 295; Harmon v. Thornton, 2 Scam., 352; Eldridge v.
Huntington, 2 Scam., 535. The same effect is to be given to the judgment of
the court upon a question of fact, submitted to its decision by consent as to
the verdict of a jury; and unless the decision is clearly, manifestly and
palpably against the evidence, this court will not grant a new trial. Dawson
v. Bobbins, 5 Gilman, 72.

Caton, J. Where, as in a patent from the United States, the land is only
described in the conveyance by numbers and quarters, we have to look at the
plats and field notes of the public surveys, in order to locate the land.
These are to be considered as if incorporated into the patent itself. In order
to understand these, we must observe the system under which the surveys were
made. By this system, the public lands are first surveyed into townships, six
miles square, the lines of which are required to correspond with the cardinal
points. At the corners of the townships, appropriate monuments are required to
be erected; between which, all along these lines, other monuments are erected,
at intervals of one mile. The townships are subsequently divided into thirty-
six sections, by running parallel lines each way, from those intermediate
monuments on one side of the township to the corresponding ones on the side
opposite. At the corners of the sections, where these lines cross each other,
and equi-distant between these corners, monuments are also erected. This
divides the township into sections, and those sections into quarter sections.
Only the external lines, however, of the sections are actually run upon the
ground by the original surveyor. The lines thus actually run by the surveyor
become the true external boundaries of the sections, and, of course, of their
subdivisions. Where the boundaries of the subdivisions have not been actually
run, they must be ascertained by running true lines from one established point
to another. The original monuments, when ascertained, afford the most
satisfactory, and we may say, conclusive evidence of the lines originally run,
which are the true boundaries of the tract surveyed, whether they correspond
with the plat and field notes of the survey or not. All agree that courses,
distances and quantities must always yield to the monuments and marks erected
or adopted by the original surveyor, as indicating the lines run by him. These
monuments are facts; the field notes and plats, indicating courses, distances
and quantities, are but descriptions, which serve to assist in ascertaining
those facts. Established monuments and marked trees, not only serve to show
with certainty the lines of their own tracts, but they are also to be resorted
to, in connection with the field notes and other evidence, to fix the original
location of a monument or line which has been lost or obliterated by time,
accident or design. (1) As in this case, the only monument which was required
to be erected in the original survey, bordering upon the premises in question,
was upon the township line at the north-east corner of section six. This
original monument could not be found, and its true position is the only
inquiry. The principal controversy seems to be, as to its true position north
and south, which must be upon the township line running east and west. The
original monuments at each extreme of this line — that is, the one five miles
east and the other one mile west of the corner sought to be established, are
identified, but, unfortunately, none of the original monuments and marks,
showing the actual line which was run between townships five and six, can be
found; and hence we must recur to these two, as well as other original
monuments, which are established in connection with the field notes and plats,
to ascertain where those monuments were: for where they were there the line
was.

If the two known monuments, at the two extremes of the township line, were the
only ones required to have been erected, and the line was necessarily a direct
one between the two, then those monuments would have to govern, no matter how
variant the line which they indicate might be from the field notes. But that
the line was not necessarily straight, and, indeed, we know it could not have
been, rom the known imperfection of the means employed to run it; it must have
varied more or less at each monument or mark indicating it. It is this
necessarily varied line we seek.

When the location of a lost corner is sought, by approaching it from others
which are established, we must be guided by the best lights at command,
however imperfect and unsatisfactory they may be. These, in the present
instance, are principally the field notes. The law can not satisfactorily
determine, in all cases, whether the courses or distances shall govern, when
they do not correspond, but that must be determined by concurring testimony,
and the circumstances of each particular case. The one that convinces the
judgment the most must be selected. Unless the compass is beyond the influence
of disturbing causes, and the surveyor is very careful in adjusting it
properly, and in noting minutely the variation at which the line is run — and
we know the date of the survey—so that the increase or decrease of the
variation since, can be added or deducted, no surveyor can ever feel confident
that he is running even very near to the line traversed by his predecessor,
and by whose minutes he is working.

In this case, Mr. Richards, who was appointed by an order of the court, and by
the agreement of the parties, to make the survey, first run a direct line from
A to B, as indicated on the plat (X), which he returned with his report,
marked (R), and which represent the known monuments at the two extremities of
the township line. The result was by no means satisfactory. This line he run
at a variation of 5° 48'. The field notes and plat from the surveyor general's
office, marked (Y), do not show at what variation the original line was run.
We learn, however, from the courses marked on the plat returned by the
surveyor, so far as that speaks on the subject, that the other township lines,
which were originally run at the same time that this was, were run at a
variation of 8° 24', while the variations of the sectional lines range from 8.
24' to 70° 42', the latter being the least found upon the plat, except the
line in controversy. This disparity is sufficient to show that some gross
mistake had been originally made in the course of the line. The distance,
also, was found to exceed the length given in the field notes 7.59 chains. But
little that was satisfactory could be gathered from the survey thus far. It
must be remembered that the monuments found *at the two extremes of the line,
were entitled to no more controlling influence, in determining the actual
location of the intermediate line, than any two intermediate monuments, had
they been found, and these had been missing. D and G would have served as well
to find A and B, had they been lost, as the latter would to find the former.
The last corner must then be approached from other known points.

The surveyor then went two miles north of the point which he was seeking to
establish, at C, where he found the old corner, and run down on the east lines
of sections thirty and thirty-one, verifying the accuracy of the field notes,
by two original monuments, which he found in his course, and fixed upon D as
the position indicated for the southeast corner of section thirty-one. He then
went one mile south to E, the established south-east corner of section six,
and run north upon the east line of that section, by the field notes, and
struck but seventeen links south of the point previously fixed upon at D, as
the supposed location of the original corner, making an offset on the same
side, and variant but seven links from the field notes. Here, indeed, is a
remarkable concurrence of testimony, which could hardly be accidental, and
there is nothing to throw a doubt upon the accuracy of the location thus
indicated, except that it is not upon a direct line between the corners of the
townships at A and B, and this, as we have before seen, is entitled to but
little weight. But Mr. Richards did not stop here. With the view of still
further testing the accuracy of the place selected at D, he proceeded by the
same process to establish the north-east corner of section five, and in doing
this he had the addttional advantage of the original quarter section corners,
as well as section corners, on the east line of sections five and thirty-two,
except the one on the township line, which he was then seeking to locate. The
result of this work was equally satisfactory, and by it the lost corner at G
was also established, south of a direct line between A and B, and very nearly
on a direct line between A and D.

There is too much method in all this for mere accident. According to the field
notes of the original survey, the east line of section thirty-one, is just
eighty chains, and by placing the disputed corner on the direct line, it would
fall short 8.10 chains, while the east line of section six would exceed the
length given it by the field notes, the same distance that the other falls
short, within seventeen links. We might be obliged to admit even so gross a
mistake as this, if it occurred only in one of the lines, but it would be a
most remarkable circumstance, indeed, if a corresponding mistake had been made
at another time in measuring another line, directly opposite and adjoining to
it, by which the same amount was added to the latter which was lost in the
former. We say at different times, for the two sections being in different
townships, they could not have been surveyed at the same time. But this is not
all. Precisely the same thing occurs in the measurement of the two lines next
east of these. Here is a remarkable coincidence of errors, if they be
accidental.

Suppose one man had lost a purse in a particular locality, containing a
particular number of dollars and cents, and another had found a purse, near
the same place, containing the same number of dollars and cents, that man
would be skeptical, indeed, who would doubt, without the most conclusive
evidence to the contrary, that the lost purse was found, although the identity
of the one lost, or of the particular pieces of coin, were not positively
proved. But suppose further, that the lost purse also contained a certain
number of eagles and half eagles, and that the one found contained a
corresponding number of each, belief would almost become certainty, and yet
the circumstances of the case before us are as much calculated to produce
conviction as those supposed.

Quantity, although the least reliable, and the last to be resorted to, of all
the descriptions in a deed, in determining the boundaries of the premises
conveyed, may sometimes be considered, in corroboration of other proof. In
this case it may not be entirely overlooked. (1)

According to the plat of the original survey, the quarter quarter sections of
which the lost monument was the corner, should contain forty acres each, which
they got by placing the corner at D; whereas by moving it up into the direct
line between A and B, the north-east quarter of the north-east quarter of
section six would contain fifty-five acres, and the south-east quarter of the
south-east quarter of section thirty-one would contain but twenty-five acres,
thus making the south lot more than twice as large as the one north of it,
when they should be of equal size. This great disparity in quantity is
sufficient at least, to excite a strong suspicion that the original corner was
not placed in a direct line between the two extremes of the township line.

We think that all these corroborating circumstances are entitled to more
weight than the bare possibility, or even probability, that a surveyor in a
wild and uninhabited country, with no one to immediately superintend his work,
did run a line six miles long, perfectly straight, as his instructions
required that he should.

The finding of the court below, thus supported by evidence, should not be
disturbed.

The judgment of the circuit court is affirmed, with costs.

Judgment affirmed.

-----------------
Cited — Kruse v. Scripps, 11 Ill., 98; Sawyer v. Cox, 63 Ill., 130; Bauer v.
Gottmanhausen, 65 Ill., 499; Lull v. Chicago, 68 Ill., 518; M'Cormick v. Huse,
78 Ill., 363.

(1) The boundaries, when known, control the notes and plat of the survey; but,
when the monuments designating the boundaries are obliterated, they can be re-
located only by the field notes and plats of the original survey. In doing
this, resort must be had to other known lines and monuments, as a basis of
survey, Sawyer v. Cox, 63 Ill., 130; Bauer v. Gottmanhausen, 65 Ill., 499;
Martz v. Williams, 67, Ill., 306.

(2) See Kruse v. Scripps, ante, p. 98, note 1.

(1) Miller v. Beeler, 25 Ill., 163; Tolman v. Race, 36 Ill., 472; Colvin v.
Fell, 40 Ill., 413.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar.
CHICAGO: CALLAGHAN & CO. 1886.