Ellicott v. Pearl 10 Pet. 412, 35 U.S. 412, 9 L. Ed. 475, SCDB 1836-029, 1836 U.S. LEXIS 451

Thomas Ellicott and Jonathan Meredith, plaintiffs in error v. William Pearl.

At the trial of a writ of right, in the circuit court of Kentucky, a witness was offered to prove that one Moore, who was dead, and whose name was put down as one of the chain carriers'in making the original survey, and who was subsequently present when lines were run on the same land, had declared, that a certain corner was the corner made by the surveyor, Kincaid, when the original survey was made and the line run by the direction of the surveyor, for the original survey. The circuit court rejected the evidence. Held, that the circuit court did not err in rejecting this evidence.

The evidence was not merely hearsay ; but hearsay not to matters of general reputation, or common interest among many.

The general rule is, that evidence, to be admissible, should be given under the sanction of an oath, legally administered: and in a judicial proceeding, depending between the parties affected by it, or those who stand in privity of estate .or interest with them. Hearsay is admitted in cases of pedigree, of prescriptive rights and customs, and some other cases of a public, or quasi public nature. In cases of pedigree, it is admitted upon the ground of nece^ity, or the great difficulty,-and sometimes the impossibility, of proving remote facts of this sort by living witnesses But in these cases-it is only admitted when the tradition comes from persons intimately connected, or in close relation with the family, orirom sources of a kindred nature; tyhich, in a general sense, maybe said to import verity: there being no lis . nota or other interest to affect the credit of their statement.

In cases of prescriptive rights and customs,' and other claims of a public nature, tradition and reputation have been in like manner admitted. They are all cases of a general right, affecting a number of persons, having á common interest.

The distinction seems now clearly established in England, that hearsay, or reputation, or tradition, is not admissible in cases of mere private rights; but only in cases of public rights, or those quasi publici, involving similar interests of a number of persons. Perhaps a' reason may be found which, upon principle, would well support this distinction. ' It is that, in regard to private rights, the acts, profession and .assertion of title by the parties claiming for themselves are, in all cases, susceptible of direct proof: but in cases- of public rights, the acts, profession and assertion of title by many persons, not‘in privity with each other, cannot be explained or qualified to be in furtherance of a-common public right; unless the evidence of general reputation were admissible to explain the intention and objects of the parties in those acts, or that possession or assertion of title ; that'is to say, whether done in furtherance of a common right or of a private right.

Kincaid had been examined as a witness for the demandants (by way of deposition), and the tenants, thereupon, gave in evidence the conversations and declarations of Kincaid, to certain witnesses, in order to discredit his (Kincaid’s) testimony, and to show that he' had stated that the survey was made by him, at the mouth of Raccoon creek, for Remey; when it was his interest to place it at Pond creek. The dem and nuts then, with a view to sustain Kincaid, and to support the statements *413going to his interest, offered witnesses to prove the statements arid conversations of Kincaid at other times, corresponding with the statements in his deposition, relative to his making the surveys of Thompson and Reméy; and .it being suggested by the demandants, upon an inquiry from the court, that these statements and conversations were subsequent to that testified to by the tenant’s witnesses ; the court, upon .an objection taken by the tenants, excluded the evidence. By the Court. The evidence was properly excluded. Where • witness proof has be'en offered against the testimony of a witness under oath, in order to impeach his veracity; establishing that he has given a different account at another time:. we are of opinion that, in general, evidence is not admissible in order to confirm his testimony, to prove that at other times he has given the same account -as he has under oath: for it is but his mere declaration of the fact; and that is not evidence. His testimony under oath is better evidence than his confirmatory declarations not under oath; and the repetition of his assertions does not carry his credibility further, if so far as his oath. This is said in general, because there are exceptions: but they are of a peculiar nature, not applicable to the circumstances of this case: as where the testimony is assailed as a fabrication of a recent date, or a complaint recently made; for there, m order to repel such imputation, proof of the antecedent declaration of the party may be admitted.

The tenants, in order to prove, the boundaries of the demandants’ land, as laid down in the plat, and claimed by them, gave in evidence the original plats and certificates of survey of their two thousand and one thousand acre tracts; and then examined M’Neal, a witness for the demandants, who was first introduced to prove their boundary; who stated that the water courses, as found on the ground, did not correspond with those represented on the said plats: and after being examined.by the demandants, for the purpose of proving that the marks on the trees, claimed by them as the corner and lines of their surveys, were as ancient as the said surveys, and also as to the position and otherwise of the lines and corners claimed .by them, and represented on the plat made and used at the trial; stated on the cross- . examination of the tenants’ counsel, that some of the lined, marked to suit the calls of the said surveys, appeared to be younger; and others, from, their appearance, might be as, old as the date of the said plats. The demandants, to counteract this evidence, and to sustain'their claim, offered in evidence a survey, made out by M’Neal in an action of ejectment formerly depending between the same parties . for the same land, of which survey Pearl had due' notice. The tenants objected to the reading of the explanatory report accompanying this survey, and the court refused to allow so much thereof as stated the appearance as to age and otherwise of the lines and corners to go in evidence to the jury; and accordingly caused to be erased from the plat the words following, viz. “ ancient” (chops); — f‘ John Forbes, Jun. states he cut the same letters and figures;” — “on the east side, no chops appear to have been marked with a larger axe, than the chops on the beginning tree;” — arid then permitted the residue of the report and plat to go in evidence. Held, that the evidence was properly refused.

The assumption that there can be no possession to defeat an adverse title, except in one or other of these ways, that is, by an actual residence, or an actual enclosure; is a doctrine wholly irreconcileable with principle and authority. Nothing can be more clear, than that a fence is not indispensable to constitute possession of atract of land. The erection of a fence is nothing more than an act presumptive of an intention to assert an ownership and possession over the property. But there are' many other acts, which are equally evincive of such an intention of asserting such *414ownership and possession; such as entering upon land and making- improvements thereon; raising a crop of corn; felling and selling the trees thereon, under colour of title.

An entry into possession of a tract of land, under a deed containing specific metes and bounds, gives'a constructive possession of the whole tract, if not in any adverse possession: although there may he no fence or enclosure round the ambit of the tract, and an actual residence only on a part of it- To, constitute-actual possession, it is. not necessary that there should he any fence or enclosure of the land.

Where-there has been an entry on land under colour of title by deed, the possession is deemed to extend to the bounds of that deed; although the actual settlement and improvements were on a small parcel only of the tract. In such a case, where there is no adverse possession, the law construes the entry to be co-extensive with the grant to the party; upon the ground .that it is his clear -intention to assert such possession.

The demandants, in a writ of right, claimed adversely to all the tenants, upon a title independent and distinct from theirs. The tenants all claimed under an adverse title by deed of seven thousand acres; that is, under a title common to them all. The demandants could not recover any tract in controversy, unless they were seised thereof within thirty years, the period prescribed by the statute of limitations for writs of right. If, therefore, there had been thirty years adverse possession of the particular tract in controversy, by any of the tenants; the demandants failed in their suit, and were debarred from any recovery.

The court instructed the jury, that if they should find that the patent for the land, under which the title of the tenants was derived, did not cover all the land; yet, if they find from the evidence, that the tenants, or any of them, or those claiming under them, have had possession of the land in contest for thirty years next before the commencement of the demandants’ suit, they must find for the tenants. .

IN error to the circuit court of the United States, for the district of Kentucky.

The plaintiffs in error, citizens of the state of Maryland, on the 17th day of January 1831, sued out of the circuit court of the United States for the district of Kentucky, a writ of right against William Pearl, for a tenement containing one thousand acres of land, in the county of Laurel, in the state of Kentucky. The defendant appeared and took defence, and put hijnself on the assize; praying recognition to be made, whether he had greater right to hold the said tenement, with the appurtenances, as he held it; or whether the demandants, Ellicott and Meredith, to have it, as they demanded it. The demandants afterwards, did likewise.

At May term 1834, the case was tried by a jury, who returned into court the following verdict: “We, the jury, find that the tenant has more right to have the tenement, as he now holds it, than the demandants tp have it:” and the circuit court gave judgment for the tenant accordingly.

*415At the same term of May 1831, other writs of right were sued out by the plaintiffs against other tenants of the land; and the like proceedings and judgment took place.

On the trial of the case, the following bill of exceptions was filed.

The parties having agreed that these causes should be.heard at the same time, without prejudice to the right of either party, and that the evidence should be heard as to all, and to be applied to each respectively, the jury was so sworn; and.the plaintiff, to support his part of the issue, introduced, the patents to James Kincaid for two thousand, acres, and for one thousand acres, and deed from James Kincaid to Samuel and Robert Smith, and the deed from Robert Smith to Samuel Smith, and the deed from Samuel Smith to the. demandants, in the words and figures following. [The patents and deeds were inserted.]

The boundaries of the two thousand' acre's, surveyed and granted to James Kincaid, were “in Lincoln, county, on the east fork of Rockcastle, beginning at Kincaid’s lick, on a branch of said fork, and on the north side, .thence south and east for quantity, and bounded asfolloweth, to wit: beginning at said Kincaid’s lick, on.a branch on the-north side of the east fork of Rockcastle two beeches, thence south five hundred and sixty-six poles, crossing said fork to two white oaks, thence east five hundred and sixty-five and a half poles, crossing several branches to a white and black oak, thence north five hundred and sixty-six poles, crossing said east fork to two black oaks, thence west five hundred and sixty-five and a half poles, to the beginning.”

The boundaries of the oné thousand acre survey were, “in Lincoln county, on the waters of Rockcastle, to begin at Grigsby’s southeast corner of his entry of two thousand acres of land, thence west with Grigsby’s line to his corner, thence south for quantity, and bounded as foilowetb, to wit.: beginning on said Nathaniel Grigsby’s south-east corner at a white oak and black oak, thence west five hundred and,sixty-five and a half poles,, crossing several branches with said- Grigsby’s line to his corner at two white oaks, thence south two hundred and eighty-three poles, to two black oaks, thence east five hundred and sixty-five and a half poles, crossing some branches to twp chestnut oaks, thence north two hundred and eighty-three poles, to the beginning, with its appurtenances.”

The parties also agreed that the trial of each and all the cases should be had on the merits, as though fhere were no blanks in the *416pleas, and that neither party should take advantage of any defect in the pleadings. , '

The demandants also read the surveys of M’Neal; the one made out in this case, and the one made out in the.action of ejectment lately depending before this court between the same parties, which surveys are made,part of this bill of exceptions, by reference, and also introduced the said M’Neal, who stated oh oath, that he was at the place shown on the plat as the beginning corner of Kincaid’s two thousand acre survey ; that the trees stood in an island of Pond creek, and that the letters W. H were made on each of the large trees, and on one of them, the letters I. K. were also marked ; that he run the line running south -from that„point, and observed two sets of marks, the one appearing, old, and the other not so old as Kincaid’s survey ; that the old line trees appeared about as old as the corner trees and the letters, but that either was as old as the surveys .of Kincaid, he could not say; that all he could say was, that himself and others thought corner .trees and the old marks on the line, were made at the same time; that he had cut. out a block on the line, it appeared to count for an old line, but.it had grown so close that he could not count the ánnulatións. The witnesses stated .that in running the south line, he had crossed Rockcastle three times before he reached the corner, pursuing the course of the patent in the manner represented in the connected; plat in this cause, and that the plat correctly represents Rockcastle river, where it is crossed by the several lines of Kincaid’s two thousand, as run by him and laid down in the plat aforesaid. The plat made out in the action of ejectment, and which was read in evidence, as aforesaid, was objected to as incompetent evidence in this cause,-by the defendants, but the objection overruled.. M’Neal also staled, that in the plat made out in the ejectment cáse, Rockcastle river, except where it was crossed by the first line from the place shown him in the begin-,. ning, was laid down by protraction only, but he had actually surveyed and laid, correctly the crossing of the river, by the different, lines on the connected plat, in these causes; each of the demandants admitted that he resided, at the commencement of these actions, at the piacé represented as his residence on the plat, and surveyor’s report made in these causes, and that if the beginning corner of the patent of James Kincaid, was at the point claimed by the demand-ants, the lands they respectively so hold, and claimed, were within the patent and deeds read in evidence by the demandants.

*417The defendants then introduced the patent to Jacob Rémey, and Jacob Remey’s deed to William Edwards, and William Edwards’S. deed to the defendant, William Pearl, as follows [The patents' were here introduced]. The patent wa.s dated’ the. 15th of July 1789, and the land was described, as a “certain tract or parcel of. land containing twenty-nine thousand peres by survey, bearing date the 7th day of November 1785, lying and being in the county of Lincoln, on the waters of Rockcastle, and bounded as followeth, to wit, beginning'three-quarters of a mile south of the mouth of Raccoon creek, and about ten poles from the same on the west side at two white oalc trees; thence north two thousand four hundred and sixteen poles to a hickory and black oak trees; thence west one thousand nine hundred and twenty and a half poles to a white oak and black oak trees ; thence south two thousand four hundred and sixteen poles to a white oak; thence.east one thousand nine, hundred and twenty and a half poles to the beginning, with its appurtenances.”

They then proved by the said • M’Neal, that the deeds aforesaid of Remey to Edwards, and from Edwards to Pearl, include the land in contest, and are correctly represented on the connected plat; that he had followed an old marked line from the mouth of Raccoon creek,' running north, and out of which he cut two blocks, which he thought counted to the date of Remey’s survey.

That he had lived in the part of the country where the land in contest lies, upwards of thirty years, and had al waysknown Rockcastle river, and Raccoon creek, and Pond creek by their respective names, since ever he had been acquainted in that part of the country; that he was on part of the lines of Pearl’s deed, in 1799, before Pearl settled on the land, and that in the spring of 1800, William Pearl, claiming the whole of the land described in his deed under the patent to Remey, settled upon the land, as he understood, intending to take possession of his ent.ire tract; and that Pearl, and those claiming under him, have held the possession of the. land ever since, that the settlement of Pearl aforesaid, was made at or near the figures II, on t,he connected plat. That Pearl and those claiming under him, have always claimed to hold the land under Remey’s patent; the other defendants all claimed under Pearl. The defendant also introduced John Crook, who swore that he was at the house of William Pearl in the spring- of the year 1800, and that he was then' living on Rockcastle, near the place represented on the plat made *418out in.this cause by the figures II; that he came from the neighbourhood of Goose creek, or by Terrell’? camp; and that Terrell’s camp was about four miles from Pearl’s, .ratlier east, and Pearl’s was all the settlement he then knew of in that part of the country. He was not' at that time at the place represented on the plat as the house where James M’Cammon lived in 1801, nor ’could he say whether M’Cammon was then living there or not, that place is several miles distant from the place at which William Pearl then lived.

The defendant called Metcalfe,, who stated tha.t old James M’Cammon moved his,family and settled on the land in controversy at the place represented as the house where Ja'mes M’Cammon lived in 1801 on said plat, either in 1800 or 1801, and he thought 1800 ; and as he understood, under a purchase of a part of his land from William Pearl,.but how much he did not know, nor could he say. Ha understood that M’Cammon had contracted with Pearl for part of his'land, and settled under that contract, and continued to hold the land aforesaid for a year- or two, when; by some arrangement or. agreement between M’Ca'mmon and Pearl, he, M’Cammon, got other land, part of Pearl’s same tract, and Pearl took the place aforesaid ; that the place first settled by M’Cammon had been ever since held and possessed by M’Cammon,. Pearl and others holding under him ; he could not say whether his land was marked out to liim or not; but he said he never heard it was, nor did he ever hear that any deed was made : he also said, upon being interrogated by demandant’s counsel, that one Hardy Hart settled under a contract of purchase from Remey, about the same time, he thought, at or hear the same place ; that he could not say what year it was ; he said that he could not speak positively of the year M’Cammon first set-tied, but it was the same year one of his children was born ; and he always (bought it was on the same year his daughter Jenny was born until he came here, but she being of the same age that a brother of M’Neaf the surveyor was, and M’Ncal’s brother being, as he was then (old by M’Neal, thirty-one years old next July, he had, on reflecting upon the subject, became satisfied that'it was his daughter who he thought was about two years older than Jenny that was born about the saxne time that M’Cammon settled as aforesaid, so that lie had concluded that M’Cammon had settled either 1800 or 1801 ; and that he thought that he and Pearl settled about the *419same time ; and that the land has been settled and held by one or another under Pearl’s, claim ever since.

M’Neal was then called, and stated that he could not state when M’Cammon settled ; that all he could state was that his, M’Cammon’s boys, were there making the improvements for their father.the-fall before he, M’Cammon, brought his family and settled, as witness had in the spring of the year assisted them to roll logs, at which time the old man had hot removed to the place, from which he-inferred that they had been there the winter before ; but could not say when they did first go on the land, nor could he state what year he rolled the logs; that Pearl settled near the figures II as stated on his plat in the spring of the year 1800; that lie,-Pearl, that year made sugar and tapped trees within the one thousand acres of the demandants as laid down ; but his house and clearings did not interfere with the one thousand acres ; that his brother, that was of the same age of Jenny the daughter of the witness, would be thirty-one in next July ; that he understood that Pearl settled at the figures II claiming under his purchase of Edwards his whole tract; he was asked'by demandants’ counsel, whether Pearl did not tell him that M’Cammon settled in 1801, and in answer he said that at the direction of Pearl he had represented the place on the plat to be the one-at which M’Cammon lived in 1801.

The demandants then examined John Cook, who stated that he was acquainted with Hardy Hart, spoken of by the witness Metcalfe,. and that he resided on Goose creek below the saltworks in the mouth of July 1802. That he and the company arrived at the salt works on the 2d of July 1802 ; that the said Hardy Hart, was then living below the Goose creejc salt works, on Goose creek, on (lie south fork of Kentucky ; that after he arrived at the salt works, he, and his company, purchased corn of him, the said Hardy Hart, for their wagon horses; that he continued to reside there some time after-wards, how long he could not say, but he thought until fall, when he removed to Rockcastle, and settled near to William Pearl’s. '

The demandants, to show that Rdmey’s patent did not cover their patents, but that it covered land at or near the mouth of Pond creek, read the deposition of James Kincaid, and which is made a part of this bill of exceptions.

[The deposition of Janies Kincaid staled in substance, that he received Thompson’s wairant from Alien, and bound himself to locate and make the survey. He received Remey’s warrant from *420Nathaniel Grigsby. He was never at the mouth of Raccoon creek, until he went there in company wiLh George Thompson, between 1796 and 1799. Before he made the survey, he did not particularly understand the geography of the country. He went from the Crab orchard ; and we went what was called the Crab orchard trace ; but we did not travel the trace as far as the Hazelpatch. He had travelled the trace before, and he thought he could go a nearer way to Raccoon creek through the woods. He was apprised of the place where the trace crossed Raccoon crees; and when we got in the fiat near the Hazelpatch we turned off to the left, hand to strike the mouth of Raccoon creek; and after travelling some distance we struck a water course, supposed by me to be Raccoon, creek ; and he went down it to the mouth, or to where it and another' creek came together ; and we supposed that was the mouth of Raccoon creek.

George Wilson, Reuben Terrell, William Moore and a young man by the ñame of My res were there; and he don’t remember others, but he thinks there was another man by the name of Crow.

The following was the manner of making the survey : we went, there in the evening late, and encamped on a'little dry branch above the mouth of the creek on the south side ; recollects the next morning he saw spruce pines standing on the bank, both above and below the mouth of the creek. Did not recollect'of going to the mouth of the creek; but took it for granted, from the appearance of the bottom on the north side of the river, that it must be the mouth of Raccoon creek.' And next morning- after we got there, he thinks he went down to the bluff, near the mouth of the creek; and George Wilson, who was a young man that he was learning to survey; he had a compass, and he started to run the north line'; and myself and Reuben Terrell and William Moore, started and run the thrée quarters of a mile south to the beginning corner; but he did not think he marked the beginning corner that day, for we had but cne tomahawk in the company, and George Wilson had taken that on the north line. But after measuring three quarters of a mile from the mouth of the creek, we then stopped and started to run the west line of Thompson’s and Remey’s surveys; this line he marked “ thirdly,” with a butcher knife, and made Thompson’s corner and Remey’s with said knife, and returned to the camp the same evening, near the mouth of the creek, and there he met with George Wilson; and he fur - nished him with his field notes of the north line of Remey’s survey, and we all went in company to the' beginning, that he had ascer*421tained the day before, and then made beginning corner with a tomahawk. We then started and run the south line of Thompson’s survey to the trace which was called Boone’s trace, crossing it near the top of a ridge dividing the waters of Little and Big Raccoon ; that is what he now understands to be the waters of Big and Little Raccoon. Where he crossed the trace he was more particular, and marked the line more plain, and continued the line the length of the survey, and made the corner.

He recollected to have run over a ridge from the mouth of the creek to the beginning, and rose a steep hill ; and after running the distance called for, made Thompson’s, corner, and continued the line to Remey’s corner. Never has been at Reiney’s corner since. . Described the trees at the corner. He did not think he crossed the creek in running the south line of Thompson’s survey.. The survey was thought to be at Raccoon creek, because it was intended to be there ;. and it was thought to be there until it. was discovered to be Pond creek, through mistake; instead of Raccoon.creek.

He discovered the mistake when he’ went to the mouth of Raccoon creek in company with George Thompson and John Wood; George Thompson and himself got John Wood to go and show us the nearest way to the mouth of-Raccoon creek; and when (hey got there, he-told Thompson that was not the place he h,ad made the survey; and. Thompson replied and said that Wood said that was the mouth of Raccoon creek. And at'that time he held Allen’s bondfor half of_ Thompson’s survey, and Thompson was about buying his interest in' the land ; and when he told him that was not the pldce he made the survey, Thompson told him he would give him a certain sum for his interest, provided he would then make the survey there, which he agreed to do; and Thompson said if he would make the survey at that place, he would hold the land from the way the patent had issued, calling for the mouth of Raccoon creek; and that is the reason that in the .obligation to Thompson that the waters of Raccoon is not named; but instead of Raccoon, the waters of Rockcastle was inserted ; for he told Thompson that he would not be responsible for the land at Raccoon creek; and he knew the other expression could be complied with, for he knew the survey was'made on Rockcastle.

John Kincaid and Jesse Shelton were present, when he marked the course on the west bank of Raccoon creek. He was not with Charles Smith when he made the survey at Pond creek. Neither William Pearl nor Moore was with them. He was sent for and *422went to them, when they were near three miles from the course of the west bank. He did not tell William Smith where the beginning was, because Thompson had requested him not to do so. He has an interest in Remey’s dam ; and it would be worth more if the survey could be established at Raccoon creek.

Has, since the original survey„was made, been well acquainted with both places, and has no doubt the survey was made at Pond creek. He described the mouth of Pond and Raccoon creek particularly ; and he slated that he well recollected to have seen them when the original survey was commenced.

On being asked what he knew about a survey in the -name qf Nathaniel Grigsby, of two thousand acres, lying on the north fork of Rockcastle creek, entered on the 10th day of March 1784, he answered:

“ I made the entry, but had no knowledge of the place at that. time but by information; but I employed William Henderson, a deputy surveyor, to make the-survey as above, and the following, to wit: Thomas "Shelton one thousand acres on a treasury warrant, No. 7746, as assignee of James Henderson, on the waters of Rockcastle, to begin at Grigsby’s south-east corner'of his entry of two thousand acres, as above entered the 3d day of August 1784. Also, Thomas Shelton seven hundred acres on a treasury warrant, No. 7747; beginning at the beginning corner of Grigsby’s survey of two thousand acres; and it appears from record that Henderson did make-the said surveys, because I did obtain patents for the same, and sold the same, with other lands, to the agents of Robert and Saihuel Smith, but conveyed to the said Smiths by specialty, and acknowledged the same before the clerk of the court of appeals. .Some time afterward a young man by the name of Curry, applied to me to show the surveys of the land I bad conveyed to said Smiths: I referred him to said William Henderson, and I understood Henderson did show said Curry said lands : and I also understood, from a Mr Forbes, who was employed as chain carrier, that said Henderson, with said Curry, run around the said land and fresh marked the lines. Some time afterward my brother and myself went on to a certain lick on an east-branch of Rockcastle, in order .to bore for salt water: after working some time, and sinking down upwards of thirty feet, met with said Forbes, who then told us we were working within the lines of one of the surveys above described,-wherein he had been employed chain carrier for the purposé of fresh marking.- Onreceiving *423this information we quit our work and went and examined the survey under the direction-of said Forbes, and went to the beginning corner, it being two beeches, plainly marked; and it appeared to correspond with' the patent and things called for therein, namely, the lick and the trees standing on the north side of the branch; and after examination we-was so well satisfied that .it was one'of the aforesaid surveys, and that we were working within the lines of said survey, we abandoned our work entirely. And this deponent further sayeth that the two beeches described as the beginning of Nathaniel Grigsby’s tract of two thousand acres, stand on a creek now known by the name of Pond creek, but an enstwardly branch of Rockcastle; and I think and believe that the survey of twenty-nine thousand acres of Jacob Remey, originally made, does not interfere with the aforesaid surveys from the aforesaid considerations; and this deponent further sayeth not.”

The demandants also read to the jury the survey made out by Lott Pitman,.which is also made a part of the bill of exceptions, by reference, and called said Pitman as a witness, who stated that he made out said plat, and that lie' found the objects as stated, and that the statement in the notes to said plat he believes to be substantially correct; that he had counted the blocks chopped out of the line running north from the mouth of Raccoon creek, that one, to wit, the one taken put the line nearest to the mouth of Raccoon creek; counted to the date of a survey "made in 1786, and the one taken farthest off corresponded to a survey of 17S5. That he had followed the maiked line, running from the mouth of Raccoon creek to a corner, said to be Ballard Smith’s corner; and that he found trees marked, as corner trees, corresponding with the. call of Smith and Robert Rutherford’s surveys. The plaintiff then read to him. the surveys of Robert Rutherford, Ballard Smith, and asked him if the old line did not correspond to these surveys: he answered it did, and that date of Robert Rutherford’s survey corresponded with the first block, and that of Smith’s to that of the second shown by M’Neal.

That the distance stated by M’Neal to the mouth of Raccoon, where he cut out the first block, would, he thought, be in the line of Rutherford, and. ivliere he said he cut out the second block, would be in the line of Smith; he thought said witness stated that he had done much surveying in that part, of the country; had much experience in tracing old lines, and in coqnting the ahuulátions of marked *424lines: and that he knew of no survey in that part of the country of the dates of 1785 or 1786, except the surveys of Rutherford, Ballard, Smith and Remey, that he had long known, the line leading north, spoken of by the witness M’Neal, and had always heard it called Rutherford’s line to his corner, and then Smith’s line.

That Rutherford’s land was settled, and those claiming under him claimed that line as One of his boundaries; said witness stated that he began at the mouth of Pond creek, and run a south line to the place shown where a white oak corner stood, and shown by Camp Mullins and others, and then tun a west line for the dividing line between Thompson and Remey, and pursuing the line for some distance, he saw ancient marks, apparently made with a knife, .that after he run some distance- his compass left it, but, finding the line again, he pursued it until they crossed Boon’s old trace; near to the trace, on both sides, he found the line marked more thickly; that the marked line, thus found, when reversed, would lead to about where Mullins showed the place for the corner; that the line run as aforesaid was not a west line, but was run on a vitiation of nine degrees from the call in the patent; that the ordinary variation of lines made, vVhen Remey’s purports to have been made, is,about three degrees.

The demandants then called Camp Mullins,- who stated that, a good many years ago, about twenty-four or twenty-five, he was :taken to the mouth of Pond creek to search for Remey’s survey, with Charles Smith, the surveyor, Davis Caldwell, and ——i Moore; -said Moore said he was'one. of the original chainmen'; that they started at the mouth of Pond creek, and run south-until the surveyor told .them the distance called in Remey’s patent was out; and they then turned out to hunt for the corner; that he found a white-oak standing near to where the course and distance ended, plainly-ánd anciently marked as a corner -tree. That he recollected'it was marked on the north arid west sides, but could not-say whether it was marked on the south side or not,; that the white oak was of a common cabin log, and that, near to the tree lay the trunk of a white oak not quite so large; that the top of the log was burnt so that no chops appeared on it, but that they turned it over, and found the under side plainly and anciently marked with three-chops, apparently done with the same tool that the standing tree had been marked with; that they then run-north, and on the course of Remey’s patent, saw line trees plainly marked, that appeared old, and to have been made about the same time, and the same kind of tool that the white oak corner did; and *425that they run. the west line and saw marks made with a knife, drawing-knife of. some kind; that he showed the place where said trees were, to Lot Pitman and M’Neal, but that said tree and log are now gone, and a hole or hollow place is visible yet, where he thinks the white oak stood. ‘ That Moore, the chainman to Remey’s original survey, is now dead.

That on the lines aforesaid there were many trees plainly marked, and might be easily discovered - by any person pursuing the courses, and also called Mullins, who stated that be was along with his brother Camp Mullins and others, when the the white oak tree was found, and stated the same that Camp Mullins did as to the tree log and lines.

The demandants then called Henderson, who stated that he had been on the ground and shown the place spoken of by Mullins; that he had accompanied the surveyor when running, north' from said tree: that they saw no line trees now standing, but he saw several trees standing near where the survey run, blazed ; that his object in going onthe ground (he being agent of demandants) was to find marked trees on the. lines aforesaid, but after the most diligent search, neither he nor any other in company, could find any marked trees•;. that there were standing in the course of the line many trees. Pitman the surveyor made the same statement.

The defendant then called John Crook, who stated' that about 1801, he had been called on as deputy surveyor by James Kincaid, whose deposition demandants had read, to lay off Jacob Remey’s survey, in which said James Kincaid claimed an interest; that he was taken to the place now claimed by defendants to be Remey’s beginning corner, three quarters of a mile south of the mouth of Raccoon creek, and shown by.sáid Kincaid a white oak tree, or two white oak trees as corners, arid told by said Kincaid that he had made the survey of Remey there; that he was directed by Kincaid to run the diagonal line from that to the north-west comer, to see if the survey would include a famous saltpetre cave then esteemed of great value, claimed by said Kincaid under said patent of Remey; that he ran the line to a tree which Kincaid showed as a corner tree; that tree was newly marked and not chopped through the rough bark; arid if it were in reality a corner and the beginning also, the survey would include nearly forty thousand acres of surplus land; that in making the survey aforesaid he acted under an order of court in a suit in which Kincaid, the witness for demandants, was party or in-*426interested ; that Kincaid was interested in making Remey’s patent cover the saltpetre .cave, and that if Remey’s survey was originally made at Pond creek, his patent boundary would approximate the saltpetre cave, three or four miles nearer tiran if the survey had been made to begin where Kincaid,then showed the beginning to him.

The defendant also called William Smith, who stated in substance what Cook stated, and further stated that Kincaid-said that he would make new lines look like old ones, by putting aquafortis in the chops, and he staled that the chops on the white oak corner appeared to be too old for 1798, but he could not state how old it was; they were not doúbting that it was shown as the corner by Kincaid that it was so; did not count, the annulations, and was then but little accustomed to pursuing and hunting old lines; said witness stated that when they run the diagonal line as stated by Crook, to the northwest corner, he felt satisfied that the survey to run from Raccoon could not reach the saltpetre cave; that to include the cave seemed to be a principal object with Kincaid; that it was then a bone of contention between Kincaid’ and others, and he himself was interested in defeating Kincaid in his attempt to include the cave by Remey’s sufvejr; that the cave was then considered of great value by all; that Kincaid had then got into possession of it, and was working it under Remey’s patent; said witness further stated, as did the witness Cook, that (o begin Remey’s survey at the mouthof Pond creek, where Kincaid placed it in his deposition; would place it several miles nearer to the saltpetre cave; lie thought at least three or four miles nearer, and the same fact was proved by other witnesses.

Smith and Crook both stated that the trees shown as aforesaid, by Kincaid, as Remey’s beginning,'were marked as corner- trees, such as are called for in Remey’s patent; that the marks had an ancient appearance; as they were convinced it was the beginning corner, they could not pretend to judge from the appearance of the marks, the exact time the marks were made, but they were confident they must have been made many years before 1798.

The defendants then called Titus Mershon, who stated that at times he could not state, but thought several years since 1801, or. the time spoken of by Crook and Smith ; that Kincaid, the witness, told him that in the division of Remey’s survey, he, Kincaid, had got the north end and worst land, and desired the witness to let Pearl know, that if he did not consent to a division, that he would prove the survey at the mouth of Pond creek ; that he could prove *427it at either place, for he had inadé a survey of if, boll\ at the mouth of Pond creek, and at the mouth of Raccoon creek ; that at another time, and subsequent to the conversation first detailed, Kincaid offered to him to buy state warrants in the name of the witness, and lay them upon Pearl’s land or Remey’s survey, and that he would prove Remey’s survey at the mouth of Pond creek; and that he, Kincaid, and the witness, Mershon, would divide the land between them ; that no one was present at these conversations ; the witness said that he rejected the proposition of Kincaid, and Kincaid „said if he would not others would. He, the witness, said that Kincaid went on to remark to him, that when he made the survey at Raccoon creek, his brother-in-law, Wilson, was in company, and he, Kincaid, informed the witness how it happened, that the corner three-quarters of a mile from the mouth of Raccoon creek had not been made on a true south course, and why the line had not been properly marked; he said the ground, or some of it, was so they could not run over if, and they took offsets and lost their reckoning; and Kincaid said that when they so run from the mouth of Raccoon to the beginning corner, some of the company went on one side of the creek, and some on the other; the witnesses all concurred in proving that ever since Pearl settled in 1801, lie and those holding under him,- have claimed (he land in contest under thé patent of Remey. Tlie demandants then culled Lot-Pitman, who stated thatfiom about the place spoken of by Crook and Smith, and shown to them as the place of beginning for Remey and Thompson’s /survey, and where they saw a white oak corner, lie had run a west line the distance called for in Thompson’s.patent, at. the end of which lie, found corner-trees standing, marked to correspond with Thompson’s patent; that he had cut or seen cut out of the. said line several blocks; the annulations of which counted back to 1798. Said witness slated, that to begin at Pond creek and run south the distance called for in Remey’s patent, to the place shown by Mullins, where the white' oak corner stood, the line did not cross Rockcastle and laud on the' west side of that stream ; that Rockcastle, at its junction tvit.lt Pond creek, was narrow, and Pond creek appeared wide,-but that Rock-castle run, he thought, double the water that Pond creek did ; said witness also stated, as did M’Ncal, that to run the course of Remey’s patent south from the mouth of'Raccoon creek, the distance called for, crossed Raccoon creek three times, and ended on the east side of the creek, and about fifty poles from the place stated by Smith and *428Crook, as shown by Kincaid in 1801, for the beginning corner of Remey and Thompson’s surveys; said witness stated, and so did M’Neal, that these two streams emptied into the east fork of Bock-castle river, called Raccoon, the one called Big Raccoon and the other Little Raccoon ; that the stream, where Pearl claimed the survey to be, was called Big Raccoon creek ; that Little Raccoon empties into Rockcastle, about two miles below Big Raccoon.' The defendants then called CampMullins,who stated, that the white oak corner at the •mouth of Pond creek, of which he had spoken, and the line running north from it,, appeared to be marked with a tomahawk, and also -Mullins, his brother, who stated the same.

The foregoing being the substance of the evidence given on both sides, the plaintiffs offered to prove, by witnesses, that.William Moore, whose name is put down as one of the original- chain carriers in making Remey’s survey, was dead, and that be attended the witness, Camp Mullins, about twenty-four or twenty-five years ago, when Charles Smith r.uh-from the meuth of Pond creek to the white oak tree, and also run the line north running from the mouth of Pond creek, and that while at the corner and running the line, he declared that to be the corner made by Kincaid and the line run by Wilson by the direction of Kincaid for Remey’s original survey, and also to prove what said decedent, chainman, had stated toothers relative-to the boundary of Remey’s patent, and the making of the original survey, since the settlement and possession of Pearl on the land in controversy. To the giving the statement and declarations of said chain carrier, though proven to be dead, while at the corner and on the line, or at any other time or place since the survey was made, the defendant objected as incompetent evidence for any purpose in this cause, and his objection was sustained by the court, and the declaration of the deceased chain carrier was not permitted to be given in evidence. To the which opinion ofthe court, in refusing the evidence or any part of it, the demandants excepted, and prayed the court to sign and seal this their bill of exceptions. (No. 1.)

Memorandum. — After the defendant had given in evidence the conversations and declarations of James Kincaid, with the witnesses, Mershon, Smith, and others, with a view to discredit it, Kincaid, and to show that he had stated that survey was made by him at the mouth of Raccoon for Remey when it was his interest to place it at Pond creek, as it might then with less surplus include the saltpetre cave. Thts demandants, with a view to sustain Kincaid, and to *429report the statements going to show his interest, offered witnesses to prove the statements and conversations of Kincaid, and corresponding with the statements made in his deposition, relative to his making the surveys of Thompson and Remey: to the giving such statements and conversations in evidence for the purpose aforesaid, or any other, the defendants objected; upon which the court inquired of the counsel for the demandants, whether the statements of Kincaid, which he proposed to give in evidence, were made prior or subsequent to the lime when the statements to the contrary were made by him, as given in evidence by the tenants: to which he answered he did not know, but he supposed subsequent; and thereupon the objection was sustained by the court, and the evidence excluded; to which opinion of the court the demandants except and pray, &c. (No.' 2.)

The defendant, to prove the boundaries of the demandants, as laid down on the plat and claimed by them, give in evidence the original plats and certificates of surveys of James Kincaid’s two thousand and one thousand acres surveys, and then examined demandants’ witness, M’Neal, the same person first introduced by them to prove their boundary, who stated that the water courses, as found on the ground, did notvcorrespond with those represented in said plats; and after being examined by demandants’ counsel, for the purpose of proving that the marks on the trees claimed by them as the corner and lines'of their surveys were as ancient as said surveys ; and also as to the position and otherwise of the lines and corners claimed by them, and represented on the plat made in this cause and used before on this trial, stated on the cross-examination of the defendants’ counsel, that some of the lines trees marked to suit the calk of said surveys, appeared to be younger, and others, from their appearance, might be as old as the date of said plats; and the plaintiff to counteract this evidence, and to sustain his claim, offered in evidence the following survey made out by M’Neal, in an action of ejectment formerly depending between the same parties, and for the same land in this court., which he obtained from the papers in that cause in the progress of this trial; demandants proved that the tenant Pearl had notice of the time of the making said survey. To the reading of which report for the purpose aforesaid or for any other in evidence in this cause, the defendant objected, and the court refused so much of said report as stated the appearance as to age and otherwise of the lines and corners, &c., to go in evidence to jury, and caused to be *430erased from the plat the following words [here words erased or underscored were inserted], and permitted the balance of the report and plat to go in evidence. To which opinion of the court in refusing the remarks, and notes of the surveyor, M’Neal, to be given in'evidence as aforesaid, the demandants except, and pray the court to sign, &c. this their bill of exceptions. (No. 3.)

The evidence being closed, the demandants moved the court to instruct the jury, that if they believe, from the' evidence, that the survey of Jacob Remey, and the adjoining survey of George Thompson, was in point of fact made at the mouth of Pond creek, by beginning at or near the letter L on the plat, that the law locates the patent on. the ground where it was actually surveyed,-notwithstanding the call or reference in said patents, of of either of them, to the mouth of Raccoon creek; and if they find that the patent.of Remey, as surveyed, does not interfere with the claim of "the plaintiffs, that they ought to find for the plaintiff, unless they find that defendants have had possession by an actual residence or fence, within the patent of plaintiffs, thirty years or more next before the bringing of these.

This instruction the court overruled, as moved, but struck out the word fence and inserted in the stead thereof, lh.e words “improvements with the intention of taking possession.”

The instruction, so amended, was given to the jury, and the juiy were also informed by the conn, that the tapping or cutting the sugar trees for the purpose of making sugar, and so using them, and the land, would not avail the tenant under the act of limitations. The demandants further moved t.lie court to inslruct'lhe jury as follows : 2d. To instruct the jury that the settlement of William Pearl at or near the II, as designated on the plat in 1800, outside of the patents under which the demandants claim, does not give any defence or limitation to the demandants’ right to recover, though he settled within what he supposed to be Remey’s claim, unless they find that Remey’s survey, as actually made, and on which his patent issued, includes said settlement, and the patent under which demandants claim. 3d. That unless they find that Remey’s survey covers the patents under which the plaintiffs claim, that the settlement of M’Cammon within the two thousand does not give a claim to a possession within the- one thousand acre patent: nor does the possession within the one thousand acre patent give any possession within the two thousand acres.

That as to the two thousand acres the statute funs as to that from *431the lime a possession was taken by an actual residence or by fencing, and the same as to the one thousand; consequently that if they find that one has been thus possessed adversely for thirty years next before the bringing of this suit, and the other not; that as to the other not so held, they should find against such defendants as were within such patent at the date of the demandants’ writ, provided, these settlements are not included in Remey or Thompson’s'as originally surveyed.

4th. To instruct the jury that if they find from the evidence that James Kincaid, the surveyor of Remey and Thompson did in point of fact make the surveys of Remey and Thompson, or cause them to be made, and the patents issued-thereon, beginning at or near the mouth of Pond creek, as designated on the connected plat, and that after he returned the certificate of survey and patents issued thereon, marked or caused to be marked, surveys wit h lines or corners to correspond with .the calls of the patents at Raccoon creek, that such marking or surveying is utterly void and vests no title whatever in Remey, or his.alienee, notwithstanding such surveys or marking may include the-land in contest.

5th. That if they find Kincaid’s beginning corner to be as represented on the plat, that then, as to this controversy, his surveys are properly laid down.

The court overruled the instructions, number three, but give the other three instructions.

To which decisions of the court in refusing to give to the jury tire demandants’ instruction, N.o. 1, as moved; and.in refusing to give to-the jury their'instructions, No. 3 ; the demandants by their counsel excepted, at the time of-the decisions, and now prayed that their bill of exceptions might be signed, sealed and enrolled, &c.

After the demandants had moved for the instructions stated in their fourth .bill of exceptions, the defendant moved the following instructions.

1. That, to enable the demandants to recover, they must have proved, to the satisfaction of the jury, that they, or those under'whom they claim, have had seisin of the land in contest within thirty years next before the commencement of their suits.

2., That if they, find, from the evidence, that Remey’s patent includes the land in contest, they must find for the tenants..

3. That if they find, from the evidence, that Remey’s patent does *432not cover the land in contest, yet if they find, from the evidence, that the tenants, or any of them, or those claiming under them, or any of them, have had possession of the land in contest for thirty years, next before the commencement of the demandants’ suits, they must find for the tenants.

4. That the plat and certificate of survey of Nathaniel Grigsby, upon which the patent for two thousand acres issued, is evidence, though not conclusive, of the objects noted by the surveyor, which the court gave, except the first instruction moved for by defendants, to which opinion of the court, in giving the second, third, fourth, fifth and sixth instructions, moved by the defendant as aforesaid, the demandants excepted, &c.

The demandants prosecuted this writ of error.

The case was argued by Mr Underwood, and by Mr Hardin, for the plaintiffs in error. No counsel appeared for the defendant.