Opinion
(January Term, 1880.)
Ejectment — Boundary.
Wherever a natural boundary is called for in a patent or deed, the line must run straight to the natural boundary without regard to course and distance.
( Cherry v. Slade, 3 Mur., 82, cited and approved.)
CIVIL ACTION to recover possession of land, tried at Spring Term, 1879, of CLEAVELAND Superior Court, before Cox, J.
Messrs. Hoke Hoke and A. Burwell, for plaintiff.
Messrs. Wilson Son, Bailey and Montgomery, for defendants.
After the evidence was adduced in support of the title of the parties respectively, the plaintiff's counsel requested the court to charge the jury:
1. That the call for a natural boundary controls course and distance, but the natural boundary not being found, the course and distance must prevail.
2. That marked trees and corners of another and junior grant cannot locate the lines and corners of a senior grant, but the course and distance in the senior grant must be run.
3. That marked lines and corners not called for may control obvious mistakes in regard to courses, but distance must be run unless controlled by natural boundaries.
4. If the "white oak" is a corner tree, we must run the course of the last line, and then go to the white oak.
The court refused the fourth instruction, but gave the others. The jury found the issues in favor of defendants. Judgment, appeal by plaintiff.
The plaintiff asked for certain specific instructions, all of which were given except one, which is as follows: "If the white oak is a corner tree, we run the course of the last line and then go to the white oak." But His Honor declined to give this charge, and proceeded, after some explanation of the counsel for plaintiff as to the meaning of the exception, to give instructions which were not excepted to.
There was no error in refusing to give the instruction asked. We had supposed there was no rule of law better settled than that wherever a natural boundary is called for in a patent or deed, the line is to terminate at it, however wide of the course called for, it may be, or however short or beyond the distance specified. Cherry v. Slade, 3 Mur., 82. According to this rule, the last line which called for course and distance to a white oak, must be run straight to the white oak, without regard to the course and distance. There is no error. Judgment of the court below is affirmed, and the defendants will go without day.
No error. Affirmed.