dissented. The principal difficulties in this case, arise from the equivocal nature of the language in which the bill of exceptions .g eXpressed In that part of it which details the evidence offered, the words are, “ that in 1806, or early in 1807, a corner hiccory, and a white oak, and lines around said tract, as now claimed and represented in said plat, were marked The word marked, may be taken either as an adjective, or a participle, and in. the former sense it would mean, it was then a marked line. If this be its proper sense, it is impossible to doubt that the evidence was altogether unexceptionable. In this sense, I am inclined to think, the word ought to be taken, from reference to the context. For, one general object was to prove notoriety, or notice to the plaintiff, in order to affect him with the charge of obstinacy or folly in running a line which had already been surveyed. And the same inference results from its being stated a few lines after, “ that no proof was given of any lines or corners having been marked before 1806 A passage which would have been nugatory, if the word marked had been used as a participle of the verb to mark; for, the affirmance of thé action at a specified time, would hhve implied a negation as to apy other time.
But taking this word with its grammatical effect as a participle, then an ambiguity arises on a comparison of the charge prayed and the charge given, as expressed in the subsequent part of the bill of exceptions. For, the prayer is, that the judge instruct the jury, that said demarcation was not in law *369sufficient to locate said grant to the spot included in said lines ; and, also, that the locality of said lands could not legally be ascertained, either wholly or in part, by the plat, annexed to the grant, or by. said entry, a copy whereof is annexed as aforesaid, or by said general plan; but the said Judge instructed the jury, that the said demarcation might be used for that purpose by the jury, and, also, that the plat aforesaid might be used by them, and the said entry, also, and the said general plan for the same purpose.”
If the instruction prayed was, that the demarcation, as it is called, considering it as the act of an indifferent person, had not the effect of an original survey, in defining, or laying off to the defendant the land which it embraced, there cannot be a doubt, that he was entitled to that charge, and it was error in the Court not to have given it. But I am of opinion, that it cannot be so understood; for, there is no refusal to give the instruction prayed, and a different instruction given ; but the words of the instruction are calculated to express a direct negation of the proposition maintained by the plaintiff. It is obvious, from the language of the charge, that the Court considers the instruction prayed, as in the same degree applicable to every item of the evidence tendered ; and I am, therefore, sanctioned in assuming, that the. charge did not go to the legaf effect of the demarcation, but asserted, that evidence of its having-been made, and where it ,was made, with reference to the conflicting lines of the parties, was proper to' go to the jury. Under this view of the subject, I *370cannot see how it was possible, unless the grant was void, to withhold it from the jury, when pursuing the “lcluiry into which they were called to enter. The grant conveys a specified quantity of land, and the locus in quo is the only question to be decided. A reference is made by the grant to a plat annexed, and the defendant must prove, that the land he holds conforms in description to the original plat. He must, of course, show what land he does hold, and this can only be done by reference to his marked line. The conformity of the demarcation to the original plat is a subsequent and subordinate question, and one which the jury must decide on, according to the evidence which shall be adduced to that point. But how to introduce it without referring to the defendant’s line, I cannot perceive.
I cannot subscribe to the opinion, that the idea is for a moment to be tolerated, that there is any thing fictitious or unreal in the plat attached to the solemn grant of the State. It. bears upon its face the only evidence which ought to be required, and evidence, in my opinion, which ought not to be contradicted, that a survey actually was made. Nor are marked trees or boundaries indispensable to such a survey ; though the lines had been traced out on the soil, or stepped off to the grantee, the grant would attach to the designated spot with all the force that would have been given to it by a fence or a wall. Identity is the only question to be decided by a jury, and if they can be satisfied that the land held by the defendant is the same land which was granted to him, it is all that should be required. At least, early *371grants should have the benefit of these principles as against those who interfere with existing lines. And this I understand to be the received doctrine of the Courts of Tennessee. (Smith v. Buchanan, 2 Ten. Rep. 308.)
it will be perceived, that the sufficiency of the evidence in this case to establish the locus in quo, is not the question. If the verdict was founded on evidence which could not support it, that might have been considered below, on a motion for a new trial. But the single question which the case presents is, whether the evidence here tendered was proper circumstantial evidence to go to the jury, in order to establish the locus in quo. The answer of the Court is,- that it may be used for that purpose. And, in my opinion, unless it ought to have been rejected altogether on the ground of invalidity of the grant, it was all properly admitted for that purpose ; not on the idea that the demarcation operated at all in conveying the estate, but as a necessary preliminary to the whole evidence. Respecting the entry, there can be no doubt; and all the rest was calculated to prove that thesé lines were marked at an early day, and en-grafted upon a general survey of the county, made under an act of the legislature, for the purpose of exhibiting the relative position of ¿states claimed in the county. This showed the early and continued claim of the defendant; and whether his possession was of the same land which had been granted to him by the State, remained for the jury to decide, upon such evidence as the nature of the case required. Facts may have existed in their own knowledge, of the *372country, or been brought to their notice from the testimony of others, or may even háve been gathered from the face of the plat, and reference to natural objects.
We know the manner in which this country has been sold and settled, and the necessity of yielding a liberal acquiescence to the claims of eárly grants. So strongly am I impressed with this opinion,' that I see no reason why a grant may not have the effect of a standing warrant of survey, as long as the land, purporting to have been surveyed, shall remain unoccupied. It is doing no injury to the individual right: and the State having received a compensation, and pledged itself for the conveyance of a certain quantity of land, sustains no injury, where the survey is reasonable, and bearing a subsequent conformity to the grant and survey under which, the claim is asserted.
In the case before us, if is obvious that the survey offered in evidence was made with reference to the Creek, as traced upon the original plat. It does not, it is true, conform to the entry in commencing at the mouth- of the west fork, which is obviously the true construction of the entry, but it embraces the mouth of the wdst fork, and conforms to natural objects. And this appears to be sufficient under the decisions of this Court, and the liberal principles admitted in Tennessee in surveying upon entries. (M'Ivers’ Lessee v. Walker and Lassiter, 9 Crunch, 173, and 2 Ten. Rep. 66. et passim.) At least, I presume the evidence in this case was all properly used toward establishing the right to that part of *373the defendant’s land which lay above the mouth of the west branch of Cane Creek, with reference to which part the survey might well be supported by his entry; and if it was legally admitted as to any part, the instruction of the judge ought to be sustained.
It has been urged, that this idea precludes the necessity of those statutory provisions of Tennessee^ which pérmit the- holders of grants on which the lands cannot be located to lay their warrants upon other land.
I confess I cannot see the force of this argument; for it is hot contended, that an individual survey will give any strength to a title otherwise defective, or cure any. inherent vice in the original survey. If the plat attached to the grant has reference to nothing from which its locality can be determined, it is not pretended, that an individual, or private survey, will make it better. On the contrary, the defence is founded upon the supposition, that the cases provided, for by those laws, is not this case • that the land admits of being identified^ and is that which the defendant has marked pff. It would be curious if other Courts should decide that the defendant’s case, was not provided for because it had locality, while we are deciding, that it is provided for because it has no locality. He would then have no consolation-for the necessity of abandoning his “ dulcíaarm,” and becoming the.<£ novus hospesn of som$ other resting plage.
Judgment reversed.
*374Judgment. This cause came on to be heard on the transcript of the record of the Circuit Court for the district of West Tennessee, and was argued by counsel. On consideration whereof, this Court is of opinion, that the Circuit Court for the district of West ..Tennessee erred in instructing the jury, that they might use the demarcation, in the bill of exceptions and opinion of the Court mentioned, for the purpose of ascertaining the land contained in the grant under which the defendant claimed. It is, therefore, adjudged and. ordered, that the judgment of the said Circuit Court in this case be, and the same is, hereby reversed and annulled. It is further ordered, that the said cause be remanded to the said Circuit Court, with directions to issue a venire facias de novo.