The evidence: 1. For the reasons stated by bis Honor, we think the deed from Elliott and ¡Smith to defendant, dated 4th February, 1858, was admissible evidence.
2. The testimony of Shaw was properly admitted. It would have been more forcible bad the witness himself identified the tree; The fact that it was done by another witness only weakens it in degree, but does not exclude it as incompetent.
3. The samo remark is applicable to the evidence as to the apparent age oí the line trees from 2 to L, and from L to M, and from 1 to 2. True, direct evideuce that these trees were marked at the making of tho deed would have been much stronger, so if the trees had been blocked and found to correspond this natural evidence would have, been stronger, but *493surveyors can form an opinion from tbe external appearance, whether trees have been recently marked, or whether it is an “ old marked line,” so they can form an opinion whether the lines are of tire same age. This furnishes natural evidence, ■weaker, in degree, bnt competent and fit to be considered by the j ury.
The instructions asked for :
1st. The instruction asked in regard to the small pond was properly refused. The wording of the deed leaves it nnceriain whether the line was near to the pond, but so as not to take it in, or whether the fourth line did take in the pond, and the purpose was to except it out of the land granted. Suppose the latter to be the proper construction. That would not settle the dispute between L and 3, which is “ the point in the case tor running to M, if course and distance is then to be controlled by the pond as a natural object, it will be met by a diagonal line from W to 5, thence with the branch, so that natural object will be taken in without disturbing any but the fourth line, and without touching the land in dispute.
2d. The instruction that the land must be located so as to include 155£ acres, was properly refused. The defendant had all the benefit of it that he was entitled to, as a circumstance that might be considered by the jury in determining questions of boundary.
3rd. The third instruction asked for is covered by the charge.
His Honor told the jury that the distance called for must be observed and the line run to 3, unless the distance was controlled by a corner established at the making of the deed and indicated by some natural object, “ as trees marked as pointers.” A tree marked as a corner controls distance; this is settled, and the same reason applies to trees marked as pointers, to a corner at a stake, particularly where there is a marked line going off from the spot indicated according to course and distance of the third line, leading to another corner and pointers. So the only *494point in the ease is, was there evidence for the j«ry as to the trees marked ior pointers, and as to the marked line trees ? The declaration of the defendant and the other evidence ceri-tainly warranted his honor in leaving the"iuatter to the jury.
Ilis Honor instructed the jury that if M. was established as "'the fourth corner the line might be reversed so as to find the corner at the intersection with the second line. The- only ob- , jection to this is that it would seem to be superfluous, for it is not reversing merely the course, but here we have a line of ^ marked trees, and ■ supposing M to be established, ■ it would make but little difference whether yon follow the line from M to<L, or went to M and followed the marked line back to L, and 5'ft could only be natural from the fact that at M, a small gum was marked as a corner and gum pointers on the south side of the Needy branch,’ whereas at L, the call was for a stake with pointers. The main point was that -.at L there was a tree ■ marked as a pointer, and that in running the nest call, according to course and distance, you had a line of marked trees leading to M, another corner. Our decision is that a tree marked md called for as a pointer, with a line of marked trees leading to another corner will control distance. Our ease is • stronger than Safret v. Hartmcm, 7 Jones 199, for here the fact of there being trees marked for planters is set out in the •deed.
The principle of controlling distance-by natural objects is based on the fact that it is easier for a mistake to be made in regard to distance than dn regard to-a tree' marked as a corner, or a tree marked asta pointer!and called for in the deed, and marked line trees, so in case these several modes of description ■ do not correspond, the less certain is to give place to the more >certain.
No error.
Per Curiam. Judgment affirmed.