408
| LAND-HOLDER'S ASSISTANT.
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that the grant expresses the red oak to be standing in the said
N. W. line; the red oak is proved not to have stood in the
line; and it is clear, from the expressions, that the red oak
was to be the termination of the line. On the whole, it
appears to the chancellor that any attempt, at this time, to carry
the line to " Whiteshall" is almost an insult on common
sense. We come now to the second point: It seems that a
N W course, which is actually called for, from the red oak to
the N branch of Patuxent, will take in all the land claimed by
the defendant; and as there is no tree, point, or spot, on the
Patuxent, called for, the caveator contends, that nothing ought
to controul the course. The defendant insists, that,
supposing his proof of the actual running to fail, there ought to
be an allowance for variation, which would leave him a part
of his pretensions. But no such allowance ever has been
made in this office, against or for a patentee; altho', in
favour of a patentee, the chancellor is authorized to correct
present runnings of courses by actual proof of the original
runnings.¾If then, there were no other circumstances in this
case, the caveat would without hesitation be allowed.
It is to be remarked that this N. W. course, to reach
Patuxent, must run at least 250 perches through " Luggor" an
elder tract, of which it takes at least 35 acres: and that this
running will make " Ayno" contain at least 880 acres, instead
of 400. It may here be observed too that, according to the
plat in this cause, if " Ayno" should run to " Whiteshall,"
and the N W. course thereof should be continued to
Patuxent, Ayno would contain at least 1100 acres. But the most
remarkable circumstance of Ayno is this; that the survey (if
actually made at all) never could have been made with
precision. Only the 6 first courses express distances, almost
every one of which appear to be extended by the calls for trees.
The 7th course, which is the course in question, if it must be
N W, not only runs through an elder tract, and gives almost
treble the quantity, (as has already been said) but is of the
unreasonable length of, at least, 650 perches: it comes to no
point on the river, and it strikes the river aslant.
It has always appeared to the chancellor that the true
locations of those ancient tracts of which evidently no actual
complete survey was made before the grant must depend on
proofs. It strikes him, that the surveyor, and party, having
got to the red oak at the end of the sixth course, determined
to go thence to Patuxent, and fixed on the point at G. which
appears from the plat peculiarly proper for a boundary. The
distance being at least 500 perches, thro' woods, and perhaps
broken grounds, they did not actually run it:—-Nay, it is
absolutely certain that they did not measure the distance of the
seventh course, because the certificate has not expressed it.—
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