John Marshall

“ As the first patentee was a fair purchaser of the quantity of land specified in his grant, and has placed his warrant, which was the evidence of that purchase, in the hands of the surveyor, a public officer designated by the State to survey the land intended to be granted; and as the land claimed under this grant, was actually surveyed and marked out before the plaintiff made his entry, so as to give him full knowledge of the title of the defendants, whatever that title might be; the plaintiff can put himself only on the strict law of his case. ”

“ I confess I cannot see the force of this argument; for it is not 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 ”

“ But it is not necessary that the grant itself should contain such a description as, without the aid of extrinsic testimony, to ascertain precisely what is conveyed. Almost all grants of land call for natural objects which must be proved by testimony consistent with the grant, but not found in it. Cane Creek, and its wesk fork, are to be proved by witnesses. So the hiccory which is to constitute the beginning of a survey of a tract of land to lie on the west fork of Cane Creek. If, in the nature of things, it be impossible to find this hiccory, all will admit the grant must be void. ”

“ 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. ”

“ They also proved, that in 1806, prior to the entry on which the plaintiff's grant was issued, a survey had been made, and a corner hiccory and white oak, and lines around the said tract, (as the defendants then claimed) were marked; and, prior to the plaintiffs' entry, were esteemed by the people in the neighbourhood to have been marked as the defendants' land. The land in dispute lay within the territory ceded to the United States by the Indians, in 1806, and no actual survey thereof had been made previous to the emanation of the grant. ”

“ 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 'dulcia arva,' and becoming the 'novus hospes' of some other resting place. ”