The judgment of the Supreme Court was entered
Per, Curiam.The point though made in the oral argument against the instruction of the learned court below, we think is without a sufficient foundation in the charge. The judge very correctly held that a subsequent survey could not control the lines of a former, but he did not leave the case upon this single instruction, by omitting to inform the jury that the subsequent acts of the deputy-surveyor in locating a junior warrant, and the marks left by him on the ground, might be considered as evidence tending to disprove the actual location of the older survey. On the contrary, he answered the third point of the plaintiff below, which raised the question very plainly, so as to bring the true distinction fairly before the minds of the jury. The point is clear, and he replied: “Marks found upon adjoining surveys made about the time of the survey are evidence upon the subject of location, but *294they cannot control or enlarge the dimensions of an earlier survey, even though they may adopt its lines.” Thus the jury was left to locate the earlier survey by those marks, if they should conclude that they indicated the true place of the earlier location; and were at the same time informed, that the lines of a later survey cannot alter or enlarge the lines of a former survey, although the courses and distances of these former lines may be adopted. Certainly this was a fair instruction and brought the charge within the precedents cited. The difference between that which is evidence of a fact and an effect which controls the fact is plain. Then when the judge came to state the evidence of the marks found, he most distinctly referred to the pitch pine on the southern line of the Martin tract, and the post or pine as the material matter in determining the question as to the southern boundary of Mary Myers. In the next paragraph he refers to his answers to the points and leaves the question of the boundary as indicated by those marks to the jury. On the whole we discover no error.
Judgment affirmed.