that there were a number of Ephraim Hatfield surveys in the vicinity of this tract, and also that the Ephraim Hatfield 304-acre survey had a line 65° west to a sugar tree. The complainant insisted that the Ephraim Hatfield 215-acre tract was not a monument call for any survey of this tract, and that there was nothing to change the calls and distances so as to reach and run with the Hatfield survey; that the line from the double lynn should continue to run with the Tiller survey "north 40° west 55 poles" as called for; that the next line should be south 65° west 118 poles as called for, and thence to the beginning If this contention be correct it would locate the closing line of the 440-acre survey in exact accordance with its location as shown in the grant to the plaintiff of the 3813-acre tract.

corner.

Maps were used by both parties at the trial which show the location of the Ephraim Hatfield 215-acre, 20-acre, 24-acre, and 304-acre surveys; also the Smith 103-acre survey and such lines of the Richard Tiller survey as relate to this controversy. The following map will show the contentions of the respective parties:

This map shows the 440 acres in controversy, the 38212 acres south of and adjoining the 440 acres, and the Ephraim Hatfield 215acre, Ephraim Hatfield 24. and Ephraim Hatfield 304-acre surveys. The contention of the complainant is indicated by the solid lines around the 440-acre tract. The contention of the defendants as to the location of this tract is indicated by the broken line, commencing at the "double lynn," at the northwest corner of the map, thence by two lines to the beginning. The first fifteen lines from the beginning corner above Horse Road fork to the double lynn corner are not in dispute. While it appears that more than one survey was made for Ephraim

Hatfield in that community, and also that the calls in the deed from Chambers, commissioner, to Sargeant, do not specify the date of the deed of the Hatfield tract to which reference is made, nor the number of acres contained therein, nevertheless it is insisted by defendant that the testimony offered in their behalf affords a satisfactory explanation as to these points and tends strongly to fix the Ephraim Hatfield 215acre home place as being the tract which is referred to in the deed from Chambers, commissioner, to Sargeant.

The defendants further insist that they have shown by the register of the land office of Virginia that prior to the separation of the state. of West Virginia from Virginia only seven tracts had been granted to Ephraim Hatfield by the state of Virginia, to wit: 84 acres on Beech creek; 45 acres on Camp fork of Mate creek; 215 acres on Beech creek; 24 acres on Straight fork of Mate creek; 125 acres on waters of Mate creek; 215 acres on Mate creek; 70 acres on water of Mate creek. It was also shown by the witness Mannakee, a civil and mining engineer, that the 84 acres on Beech creek "was approximately three miles from the double lynn"; that the 45 acres on Camp fork of Mate creek "lies across the latter creek, from and to the south of the land in controversy"; that Murphy's branch, called for in the Ephraim Hatfield patent for 70 acres, "is in a southwesterly direction from the land in controversy, and about two miles distant"; that Meadow branch, referred to in the 125-acre patent to Ephraim Hatfield, "is southeast of the land in controversy and across Mate creek." This, according to defendants' contention, leaves only the 20 (not shown on the foregoing map), 24, and 215 acre tracts, which, by stipulation, were properly located on defendants' trial map, and from which it appears that the location of the 20 and 24 acre tracts is such that neither of them could be treated as the Hatfield survey mentioned in the Chambers deed, and therefore defendants insist that there is but one survey left, to wit, the 215-acre tract.

It is further insisted on behalf of defendants that the foregoing are the only surveys made for Hatfield prior to the separation of West Virginia from Virginia, except a 304-acre tract, which was never carried into grant; that the testimony of James French Strother covered all surveys and deeds made to Ephraim Hatfield for lands in the county of Logan, West Virginia, prior to the deed of Chambers, commissioner, to Sargeant; that his testimony shows surveys to Ephraim Hatfield for four other tracts, one being for 304 acres, which by stipulation between counsel is properly located on defendants' trial map, and it is insisted that the lands in controversy could not be located by adopting this tract as the monument called for; that one tract by Chambers, commissioner, to Ephraim Hatfield, containing 114 acres situate on Beech creek, which, according to the evidence of witness Mannakee, is not even a tributary of Mate creek, and is three miles distant from the double lynn, and two other tracts, one conveyed by Floyd Hatfield to Ephraim Hatfield, containing 50 acres, and one by Ephraim Hatfield, son of Wall Hatfield, containing 25 acres, are situated on Double Camp branch, which, according to the testimony of Mannakee, is across Mate creek and south of the lands in controversy; and that, therefore,

these tracts could not be employed for the purpose of locating the line in dispute.

It is therefore contended by the defendants that the Ephraim Hatfield 215-acre tract is the only one that can be properly located as the tract called for in the deed from Chambers, commissioner, to Sargeant; that this is the only survey made for Ephraim Hatfield to which the line from the double lynn could be run, so as to use all the calls in the Chambers deed and close the survey; that to run the Chambers deed as plaintiff contends no Ephraim Hatfield survey could be reached, and no running with any line thereof for 118 poles, as required by the next to the last call in the Chambers deed, is done, while, on the other hand, when the survey is made as contended by the defendants, changing the quadrant from the double lynn, the Hatfield survey is reached, and the next call thereafter of 118 poles along one of its lines is met and the line is closed, so as to meet the calls contained in the Sargeant deed.

It is admitted that by adhering strictly to the calls of its deed it would be impossible to locate the defendants' tract. That the surveyor was mistaken as to the course and distance of the lines that were obviously made by projection is shown by an examination of the plat as well as the map made by him at the time the land was conveyed by the state. Many of the calls, if taken literally, could not be employed. so as to locate with anything like certainty the 440-acre tract. This is due, no doubt, to a misconception of the surveyor as to the location of the adjacent tracts. These calls, if literally followed, could never be run so as to connect with the beginning corner.

[1-3] It is well settled that in a case like the one at bar it is the duty of the court, if possible, to reconcile any conflicting calls, so as to establish the true location of the lands in controversy. In view of the facts and circumstances of this case we deem it important to ascertain the intention of the grantor at the time these respective tracts were conveyed. The determination of this point will aid us materially in reaching a correct conclusion as to the true location of the same.

It appears that it was the purpose of the grantor to convey to the defendants and those under whom it claims a tract containing 440acres, and that it was also its purpose to convey to the complainant and those under whom it claims 38212 acres. It further appears that the state received pay for the number of acres contained in the respective grants. Under these circumstances, it becomes highly important in determining the true location of the lines in dispute to construe the calls of these deeds so as to conform, if possible, to the respective contracts for the sale of the same, and thus effectuate the purpose the grantor had in mind at the time.

It is fair to assume that the surveyor had copies of the respective Hatfield surveys at the time the survey of this tract was prepared. No evidence was offered as to what transpired at the time this survey was made, nor was there any evidence offered to show that the party who made the same ran the lines from the double lynn corner so as to reach the Ephraim Hatfield 215-acre survey. The testimony of the surveyor, chain carriers, or other parties present, would have

aided the court below very much in determining this question, but for some reason these parties were not called to testify, and there is nothing in the record to show why this evidence was not offered.

It also appears from the evidence of the surveyors and engineers who surveyed these tracts that no marks had ever been made on the double lynn as the corner of the 440-acre survey to indicate that a line ran from that corner so as to connect with the Ephraim Hatfield 215-acre tract, and it further appears that after diligent search no evidence could be found of any line leading from the double lynn to the Hatfield survey in question, nor was there any evidence offered for the purpose of showing that a sugar tree had ever stood upon or along the Hatfield 215-acre survey. By an examination of the plat of the 440-acre survey it is apparent that a mistake was made in platting the calls. For instance, the two calls "north 55° west 80 poles to a double lynn," and "north 40° west 55 poles to a stake in the line of a survey made for Ephraim Hatfield," should have been platted northwest instead of southwest.

The following is a map showing the original plat:

This plat shows the connection of the two southwest lines. Thus it appears that if the surveyor had correctly platted the calls of his survey the closing line would have been altogether different. It also appears that the surveyor made other mistakes in copying the Tiller survey, one of which is "north 7312° west 84 to a double chestnut and locust." This was copied in running the line of the 440-acre tract so as to read south 732° west 180 poles to the double chestnut and

locust," and shows as a southwest line. It is but natural that these mistakes should have misled the surveyor as to where he was, when by protraction he was on the Tiller line north 40° west 55 poles from the double lynn corner, and caused him to believe that he could connect with the south 65° west line of the Ephraim Hatfield 304-acre survey.

As we have stated, the location of this tract depends upon the location of a single line of the call of the survey. Upon the testimony as introduced in the court below it is contended by defendants that (a) "the Hatfield survey, being identified and its lines established, becomes a monument, to which course and distance must yield;" that (b) “in order to reach a monument or the line of another survey called for, the quadrant may not only be changed, but such is the practice in surveying."

In support of these propositions the defendants insist that it is shown by a preponderance of the evidence that the 215-acre Ephraim. Hatfield tract was the one the surveyor had in mind at the time he wrote the call contained in the deed from Chambers, commissioner, to Sargeant, and, this tract being identified as the monument called for in the deed, the action of the court below in holding that the quadrant should be changed at the double lynn so as to reach the 215-acre Ephraim Hatfield tract was correct. It is well settled that, "in determining the boundaries of lands, ascertained objects, natural landmarks, and reputed boundaries control mere course and distance." Indeed, this is conceded to be the rule by counsel for the complainant.

However, counsel for complainant insist (a) that, if located as defendants contend, the land in controversy would not lie "on the ridge between Mate creek and Pigeon creek," as described by the surveyor who made the survey upon which the Sargeant deed is based, and (b) that there is no sugar tree corner in the Ephraim Hatfield survey of 215 acres, and that no line in that survey has a bearing of "south 65° west 118 poles to a sugar tree," and that in consequence no such line in that survey can be followed for a distance of 118 poles and bring the surveyor to a sugar tree therein, but that there is such a line in the Ephraim Hatfield survey of 304 acres, and, therefore, it must have been the survey intended; (c) that the true construction of the deed from Chambers commissioner to Sargeant is that the call running from the double lynn "north 40° west 55 poles" continues to run with the Tiller survey, because a few calls back the survey was made to run "with the same," and no indication prior to the call of the double lynn had been given that there was to be any departure therefrom.

From what we have said it will be seen that the one question to be determined is as to whether the 215-acre Hatfield tract is the boundary line or monument called for in the deed to Sargeant. If the evidence offered in the court below established this fact, then that court was justified in entering a decree in accordance with defendants' contention. However, to warrant a finding upon this point in favor of the defendants it must appear by a preponderance of the evidence that the 215-acre tract was the monument called for in the deed in question. In view of the fact that the surveyor failed to give the number of