DOE v. THE CITY OF MOBILE ET AL.

Attorney(s) appearing for the Case

"Campbell, for the plaintiff in error.

"Phillips, for the defendants in error.

Mr. Campbell, for the defendants in error, made the following points.

The lessors of the plaintiff claim, that a parcel of land in the possession of the defendants is contained within the limits of a lot surveyed and patented to them by the United States. Two questions arise on the record: —

1. What is the construction of the patent, from the United States to the lessors of the plaintiff?

2. What is the effect to be given to that patent, as compared with the act of Congress of May 26, 1824, under which the defendants claim the lot?

1. The line which affords the subject of dispute is found in the patent as follows: — "From a stake, thence north 17° 40' west, 224 feet, to the south boundary of the bakehouse lot; thence with said south boundary, south 75° 15' west, 89 feet 6 inches, to the east boundary of Emanuel Street."

The plaintiff contends that these lines are to be ascertained from the courses and distances specified in the patent, and that the south boundary of the bakehouse lot is to be sought and established from those data. We contend that the south boundary of the bakehouse lot is regarded in this patent as a fixed and well-known line, and that there was no intention on the part of the government to interfere with it. The controlling call in the patent is the boundary of the bakehouse lot, and not the course or distances returned by the surveyor.

The line of a tract of land may as well be the subject of a call as a natural object. Carroll v. Norwood, 5 Har. & Johns. 163; 1 Taylor, 163. It is as certain as a tree. Pennington v. Bordley, 4 Har. & Johns. 457.

Where land is described as running a certain distance by measurement to an ascertained line, though without a visible boundary, such line will control the admeasurement and determine the extent of the grant. 6 Ala. 738; 8 Ala. 279; Flagg v. Thurston, 13 Pick. 145; 5 Har. & Johns. 163; 13 Wend. 300.

When the lines or courses of an adjoining patent, being sufficiently established, are called for in a patent or deed, the lines shall be extended to them without regard to distance. Cherry v. Slade, 3 Murph. 82.

When a patent calls for the lines of another patent, it must stop at the first intersection with the latter. Miller v. White, 1 Taylor, 309; 16 Ohio, 428; Gilchrist v. McLochlin, 7 Iredell, 310.

Grants of adjoining land by the State, and occupation under them, and subsequent conveyances, referring to monuments not existing at the time of the original grants, are admissible in evidence for the same purpose. Owen v. Bartholomew, 9 Pick. 520.

In locating lands the following rules are resorted to, and generally in the order stated: — 1st. Natural boundaries; 2d. Artificial marks; 3d. Adjacent boundaries; 4th. Course and distance. Fulwood v. Graham, 1 Richardson, 491; 3 Gill & Johns. 142-150.

The decisions of the Supreme Court, in so far as they bear upon this subject, are in coincidence with them. 6 Wheat. 582; 7 Wheat. 7; 6 Peters, 498; 3 Peters, 96.

2. We contend that the United States, having made an absolute grant to the defendants of the bakehouse lot, all questions relative to the extent and boundaries of that lot were placed beyond the control of the land office. The government may grant lands twice. The effect of such grants must be determined, not by the officers of the land office, but the parties claiming under them may assert their rights in courts of justice, and claim their judgments upon them.

The boundaries of the bakehouse lot were ascertainable by the party to the grant. If they assumed to control lands without the proper boundaries, their grant did not protect them. What land was included within the bakehouse lot was a question for a jury whenever a controversy arose concerning them, which became the subject of a suit in court.

The officers of the land office could not inquire whether the defendants were intruders or otherwise. Fletcher v. Peck, 6 Cranch, 87; 8 Cranch, 244; 6 Peters, 741; 12 Peters, 454; 14 Peters, 414; 2 Howard, 319; 7 Howard, 586.

Mr. Sergeant, for the defendants in error, made the following points.

Mr. Coxe, for the plaintiffs in error, made the following points.