The opinion of the court was delivered, by
Strong, J.— The only real question raised by this record is, whether the court below was right in instructing the jury that the Mary Niel survey was to be located upon the line of that of Mary Connell, instead of leaving to them to find the proper location. Doubtless what is the true location upon the ground of a tract of land returned surveyed, is generally a question of fact to be determined by a jury. But when there are no marks upon the ground, when there is no other evidence of an actual survey than is contained in the return of survey, and when consequently the location must be ascertained from the situation of other tracts for which it calls, the jury are to be guided in their inquiry by legal principles. Their finding then becomes rather a deduction from rules of law, than the simple ascertainment of a fact.
When the case was here before, we indicated, as clearly as we could, the rules of law applicable to the facts which then appeared in evidence. It was then said that, as between the Mary Niel and the Thomas Maston surveys, the former was to be located without regard to the latter, which was the younger. That inasmuch as her lines and quantity were fixed by the patent, they could not be altered or changed so as to accommodate a younger survey, and that her courses and distances must be laid off from that starting-point which enables her to answer most of her calls. We also said that if all her calls cannot be answered, as many must be as possible, and that if she was one of a body or block of surveys, her position must be determined by the location of the block. Applying these principles to the case as it now stands, it would seem to be free from difficulty. It is manifest that the Mary Niel was one of a body of surveys, of which that of Thomas Niel was the leader. Her warrant called for that of Mary Connell as an adjoiner, and Mary Connell’s called for that of Thomas Niel. All the warrants were issued on the same day, are dependent upon each other in succession, and the returns of survey call the one for the other. True, the sur*67veys were made on different days not distant from each other, but this does not militate against their having been located as one body. It rather tends to show the honesty of the surveyor. It is vain to.deny that surveys thus made by one surveyor upon warrants thus calling for each other returned to the land office on the same day, and belonging to the same owner, are to be regarded as one block, and located together. The location of the Thomas Niel tract is fixed with certainty by the surveys of Grill and Alexander which it adjoins, and the position of which is not disputed. As therefore the Mary Niel survey calls for Mary Connell, and Mary Connell calls for Thomas Niel, the location of the Mary Niel would be fixed without difficulty, were it not for the fact that it also calls for the Sheaff and Wharton tracts, part of another body of surveys lying 310 perches east of the Mary Connell. It is certain that she cannot adjoin those tracts, and also that of Mary Connell. If she is to answer both these calls, her distances are entirely variant from those of the survey as returned, and the quantity of land immensely enlarged, or the configuration of the tract is entirely destroyed. This the law will not allow. Either the Sheaff and Wharton call must be abandoned, or that for Mary Connell. By adhering to the latter, the Mary Niel answers to most of her calls, and disregards' but one, for the Sheaff and Wharton tracts are upon the same line, the line of 1784. On the other hand, if that line be adhered to, it involves the necessity of disregarding the call for Mary Connell on the west, and the call for Turner & Co. on the north unless the courses and distances are entirely changed and the figure of the tract distorted. It also separates the survey from the body to which it belongs. Under these circumstances, it is clear that the law requires such a location as the court directed. In the instruction given to the jury, the ascertainment of the location was not taken from them. They were only told in effect what was the rule to be applied to an undisputed state of facts, a state of facts evidenced by the different returns of surveys, and in a case where the location of the tract in dispute was to be found, without the aid of any marks on the ground. We do not call in question the rule that it is for* the jury to locate a survey. All that we decide is that, in such a case as the present, where the question is what is the true lq cation of a survey more than sixty years old, of which there are no visible monuments, and which must be located by its calls for other surveys, it is not error for the court to say to the jury that it cannot be severed from the body of which it was returned as a part, and for which it calls, when, by adhering to such body, it answers the greater number of 'its calls, preserves its figure and its distances, and also its quantity, even though the consequence bo that another call must be disregarded. We understand the court *68below as having said no more. The fact that such a location caused an interference with a junior survey, is of no consequence whatever. The true question is, what was the location before the junior survey had any existence ? What it was then it must always continue to be. It MIoays that there is no error in this record.
The judgment is affirmed.