Lessee of Alshire v. Hulse (5 Ohio 534, 1832)

By the Court:

In appropriating public domain, in the wilderness, where surveys have been made under legislative acts directing the location so specially and precisely as that others may be enabled with certainty to locate other warrants oh the adjacent residuum,” 9 Cranch, 168, courts have applied strict rules of construction; have required surveys to conform to the laws, and so to describe • the land that every one may know what is appropriated. In such cases as in 3 Peters, 96, and 2 Bibb, 390, calls for a beech or hickory tree, in forests of like trees, without more particular description to point them out, are held immaterial and void for uncertainty. The rule does not apply with the same strictness to actual surveys and descriptions in an improved and settled country. *There is no pretense of analogy in the description in the plaintiff’s deed, and that in Peters. Posts were not common and undistinguishable on this land, as beech or hickory trees in forests of such timber where there are thousands alike. All lands sold bv metes and bounds are supposed to have been surveyed, and the deed is given to convey what has been surveyed, although the lines may not, in fact, have been run out. 9 Cranch, .178. The real question is, where were these corner posts fixed ? If the spots are ascertained, the calls of the deed are satisfied; and they will control the course and distance of the line, as much as if the object described as a corner were a larger or more showy and costly monument of wood or stone. There may be more difficulty in finding them, but when found they have equal legal efficacy. A post, a stake, a stake and stones, or a stone, are common objects called for in the survey of boundary lines in an improved country, between individual holders. Shall we vitiate all such surveys and calls ? If the evidence satisfies the jury where the posts were fixed for the corner, and that a line drawn from one to the other bounds the defendant’s possession, he' is entitled to a verdict. The evidence on that subject does not contradict the deed, but fixes the call of the deed and applies it upon the ground. The objection to its admission is not well taken.

Verdict and judgment for defendant.