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that his 11-league tract extended so far back from the river as to embrace the plaintiff's land, or any part of it.

The evidence was that of surveyors and chain-bearers, and tended to show the following facts, namely, that, by commencing at the beginning point of the Moreno grant, (the position of which was not disputed,) and following the lines of the survey by courses and distances only, it would embrace nearly the whole of the Daws patent; but, run in this way, the lines would not coincide with certain well-ascertained monuments, either called for in the grant, or conceded to mark and identify the footsteps of the surveyor who originally located it in 1833. For example, the easterly line of the survey, which is identified by several miles of marked trees, and the southern terminus of which, at the river San Andres, is fixed by agreement of the parties and by monuments called for in the grant itself, is situated about 570 varas, or threetenths of a mile, east of what its position would be if the courses and distances were followed; and, as fixed by such monuments, if the tract were made to extend as far back from the river as the defendant contends, it would contain 14 or 15 square leagues instead of 11. But the point of greatest importance was to fix the position of the northern boundary line of the tract, to ascertain whether it took in or crossed the Daws patent. This was a line described in the survey as running from the stake set in the prairie, south 70 deg. east 12,580 varas, or Mexican yards, (about 63 miles,) to two small hackberry trees. Of course, these hackberries marked the northern terminus of the eastern boundary line, before mentioned, which commenced from them; and two such trees, having all the old marks and blazes requisite, were found in said eastern boundary line, (and were adopted as the north-east corner of the tract,) in the course of an official survey, made by order of court in 1854, being at a distance of 26,960 varas from the river San Andres,-the distance given in the field-notes of the grant, based on calculation and not actual measurement, being 26,400 varas; whereas, by following the courses and distances mentioned in the grant, the easterly line, extended to the river, would be 30,760 varas in length, and, as before stated, would not coincide with the marked line conceded to be the easterly line as run at the original survey. If the northerly line of the Moreno tract should be located and fixed by taking for its eastern terminus the two hackberry trees referred to, it would not reach the plaintiff's land, but would pass south of it a full half of a mile. The defendant Ayers, however, disputed the identity of these hackberry trees with those called for in the Moreno grant, and claimed that the grant extended a mile and a half or more further north, which, indeed, it would do according to the length of the first course measured from the beginning corner; and he adduced testimony to show some marked trees north of the two hackberries, in the line of the eastern boundary, corresponding to his views, and some marks along the northerly or back line, claimed by him to be the true line.

The controversy, therefore, was substantially reduced to this*alternative, namely: if the first line of the survey, taken according to its course and distance, should govern the position of the back line, the Moreno tract would include the greater part of the Daws patent; but if the two hackberry trees, discovered in 1854, were to be regarded as identical with the trees referred to in the field-notes of the survey for the north-east corner thereof, then they would fix the position of the back line, and the Moreno grant would not include any part of the Daws patent. In this state of the evidence, the judge charged the jury as follows, omitting parts not material to the controversy here:

"The original field-notes do not call for any landmark at the intersection of the western line with the back or north line of the survey. At the intersection of the back line with the eastern line two small hackberries are mentioned as serving for a landmark to designate the corner. Our purpose and your duty is to follow the tracks of the surveyor, so far as we can discover

them on the ground with reasonable certainty, and where he cannot be tracked on the ground, we have to follow the course and distance he gives, so far as not in conflict with the tracks we can find that he made. ***There has been proof given you tending to show where the two small hackberries called for as the intersection of the eastern and north lines of the grant actually stood, at a distance from the lower corner on the river corresponding to the length of the eastern line of said grant. And if the proof satisfies you that the two hackberries mentioned in the testimony of the witnesses, Sam. and Pat Bigham, were the two hackberries called for and marked by the original surveyor as a corner of said grant, in that case a line drawn from the point where said hackberry stood, N. 70 W., until it intersects the western line of said grant, will bound the eleven-league grant upon the north, and if the Daws of a league is situated wholly north of this line, it does not conflict with said eleven-league grant, and you will find for the plaintiff.

"If the proof does not satisfy you that said hackberries mentioned in the testimony are the ones called for and marked as a corner by the original surveyor, you will, from the whole proof, so fix the unmarked or disputed lines called for in the grant as in your judgment most nearly harmonize the calls with the known corners and the undisputed lines. And if, from the proof, you fix these lines so as to include all or any part of the one-third league patented to Daws, you will find for the defendant. If you are not able to fix the disputed lines, or the disputed portions of the lines, with reasonable certainty from the proof, you may, taking the river as the base, so extend the eastern and western lines as that a line run N. 70 W., (or S. 70 E.,) connecting the extremities of said side lines, will embrace eleven leagues of land; and if said back line so run does not include any portion of the Daws league, you will find for the plaintiff. If you can, from the proof, fix the lines of this grant in harmony with its calls and the known corners and undisputed line, the fact, if it be a fact, that said lines would include more than eleven leagues becomes wholly immaterial, and you will not consider the extent of the area further than as a circumstance to aid you in construing the other proof in the In seeking to fix these lines from the proof you will bear in mind that course controls distance, and marked trees control both course and distance." The defendant excepted to so much of the charge given as reads thus: "If you are not able to fix the disputed lines, or the disputed portions of the lines, with reasonable certainty from the proof, you may, taking the river as a base, so extend the eastern and western lines as that a line run N. 70 deg. W., (or S. 70 deg. E.,) connecting the extremities of said side lines, will embrace eleven leagues of land; and if said back line so run does not include any part of the Daws league, you will find for the plaintiff."

case.

The defendant then asked the court to give the following charge, to-wit: "That a call for two small hackberries, at the end of the distance on the course called for, having no marks on them to designate them from other trees of the same kind, and having no bearing trees to designate or locate them, is not a call for such a natural object as will control the call for course and distance. And the jury are not authorized to consider any evidence in this case about two small hackberries found by S. A. Bigham, and by him pointed out to various other persons, which are found more than a mile from the point where course and distance would place the N. E. corner of the 11league grant."

The court refused to give said charge. The defendant then asked the court to charge substantially as follows: (1) That the rules adopted by the courts as to the calls in a grant, giving one call superiority over another, are adopted for the purpose of identifying the actual survey made by the surveyor,—an invariable rule being that the footsteps of the surveyor must be followed, and wherever he established the lines and corners on the ground, there the survey must be located. (2) That if the jury believe from the evidence that the

Moreno survey was actually made on the ground, by commencing at the beginning corner, as called for in the grant, and actually running out and tracing with a chain the upper or western line, as called for, (except the offset to avoid crossing the river;) and that the north-west corner was fixed at a point on the course called for in the grant, at the end of the distance called for; and that, from the north-west corner so established, the surveyor did actually run out and trace with the chain the distance called for, on the course called for, to the north-east corner,-they must find for the defendant.

The court refused to give the charges so requested. Leaving for after consideration the first exception, namely, that which was taken to a portion of the charge given by the court, and taking up in their order the several requests to charge, we observe that the first request, relating to the call for two small hackberries, was properly overruled. Though the field-notes of the survey did not describe them as being marked, and did not refer to other near objects as bearing upon them, yet they were natural objects actually called for at the end of the line of 12,580 varas "as landmark for the third corner;" and the presumption is that, being so referred to, they were actually marked as such, for that is the universal custom of all surveyors; and if two such trees, answering the description, were afterwards found in the east line of the survey, properly marked, and situated at about the proper distance from the river San Andres, as called for in the survey, it was for the jury to say, in the light of all the evidence, whether said trees, so marked and so situated, were or were not the trees called for in the field-notes; and, if they were, then they were such objects, and such a monument, as would control the call for course and distance. It is every day's experience in land trials, to establishi by evidence the identity of both natural and artificial monuments called for in surveys. If the beginning point be at the mouth of a brook, or creek, where it empties into a river, evidence may be given, nay, must generally be given, to establish the identity of the brook; and when once established to the satisfaction of the jury, it has all the effect of any natural or artificial object called for in the survey, and will control courses and distances. In the present case the two hackberry trees, relied on by the plaintiff, were found in the acknowledged easterly line of the survey, in which they ought to be, (2) the evidence is that they were duly marked and blazed; (3) they were at about the proper distance from the river San Andres and from Cow creek to correspond with the field-notes of the survey, and to make the survey contain the quantity of 11 leagues, although they were nearly 4,000 varas south of the north-east corner of the tract as it would be fixed by giving to the first course of the survey its full length of 22,960 varas. Under these circumstances we think that the court was right in leaving it to the jury to determine whether the two hackberries relied on by the plaintiff were or were not the same which were called for by the survey, and in holding that if they were the same, then, as monuments, they would control the distance assigned by the field-notes to the first course. It has been repeatedly held by the supreme court of Texas, as a general rule, that natural objects called for in a grant, such as mountains, lakes, rivers, creeks, rocks, and the like, control artificial objects, such as marked lines, trees, stakes, etc., and that the latter control courses and distances. Stafford v. King, 30 Tex. 270; Booth v. Strippleman, 26 Tex. 441; Bolton v. Lann, 16 Tex. 111, 112. There are exceptional cases, however, in which courses and distances may control; as where mistakes have been made by the surveyor as to objects called for, or where the calls for monuments are inconsistent with each other and cannot be reconciled, or where some other clearly sufficient reason exists for disregarding the general rule. Booth v. Upshur, 26 Tex. 71; Booth v. Strippleman, Id. 441.

The request to charge that all rules have for their object the identification of the actual survey made by the surveyor, and that it is an invariable rule

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hat the footsteps of the surveyor must be followed, and that the lines and corners must be located where he established them, was unnecessary, inasmuch as the court did charge substantially to that effect. The court expressly said: "Our purpose and your duty is to follow the tracks of the surveyor, so far as we can discover them on the ground with reasonable certainty, and where he cannot be tracked on the ground, we have to follow the course and distance he gives, so far as not in conflict with the tracks we can find that he made." We do not well see how it could be more plainly stated that the main object to be reached by the whole inquiry was to ascertain and follow the actual footsteps of the surveyor.

The final request was, in substance, a request to charge that if the jury believed from the evidence that the survey was actually made on the ground according to the first and second courses and distances they must find for the defendant. As there appears to have been no doubt from the evidence that if the lines were so run the second line, that is, the north or back line, would take in the greater part of the lot claimed by the plaintiff, the request would have been a proper one had it been qualified with the condition that the two hackberry trees were not satisfactorily identified as those called for in the Moreno grant. But without being so qualified the proposed instruction would have had a tendency to withdraw the minds of the jury from the controlling effect which the identification of those trees as the true north-east corner would properly have had on the conclusion to be reached by the jury as to the question whether the two lines referred to were, or were not, run and measured according to the field-notes. For it is perfectly clear that they could not have been so run and measured if the two hackberry trees mentioned in the fieldnotes were the same as those relied on by the plaintiff. The request, therefore, should have been, that if the jury did not believe the hackberries were the same, then, if they believed that the two lines were run according to the field-notes, they must find for the defendant.

It still remains to consider the correctness of that part of the charge given which was excepted to by the defendants. The substance and effect of it was that if the jury were not able to fix the disputed lines, or the disputed portions of the lines, with reasonable certainty, they might locate the back or northerly line so as to embrace 11 leagues between it and the river, and between the east and west lines as acknowledged by the parties. This was allowing the jury to make the location of the back line depend on the quantity of the land inclosed, if they could not fix it from the evidence. In this we think there was error in the charge. The whole context immediately connected with the passage excepted to, was in substance this: that if the testimony satisfied the jury that the two hackberries discovered were identical with those called for in the grant, the back or north line must start from, or end with, them, running in a course north 70 deg. west, or south 70 deg. east; but that if the testimony did not satisfy them as to the identity of the trees, then they must fix the unmarked or disputed lines so as most nearly to harmonize the calls with the known corners and the undisputed line, (that is, the east line.) If the jury were not able to fix the disputed lines, or the disputed portions of lines, then they might resort to quantity; that is, locate the back line between the two recognized side lines so as to take in 11 leagues.

Now, it seems to us that the jury should have been told that if the testimony was not sufficient to identify the two hackberries with those called for in the grant, and could not fix the north-east corner nor the back line by any other marks or monuments, then they should fix it by the courses and distances of the first and second lines of the survey, except that the second line should be extended so as to meet the recognized east line as marked and extended beyond the hackberries. This would have been in accordance with the rule that course controls distance, and that course and distance control quan

tity, which is correctly laid down in Stafford v. King, 30 Tex. 257, and Welder v. Hunt, 34 Tex. 44.

The statement in the first part of the charge, that the jury should follow the tracks of the surveyor, so far as they could be discovered, and when these were not to be found, they should follow the course and distance which he gives, so far as not in conflict with tracks that are found, was correct. Had this proposition been followed in the subsequent part of the charge, it would not have been open to criticism. But when directions were given to the jury in greater detail, they were not referred to the courses and distances given by the surveyor, in case they were unable to identify his tracks, (that is, in case the proof relating to the two hackberries was insufficient,) but they were told thus: "You will, from the whole proof, so fix the unmarked or disputed lines called for in the grant as in your judgment most nearly harmonizes the calls with the known corners and the undisputed lines;" and if not able to fix these lines in this way, then to resort to the rule of quantity. This was putting the matter as if it depended on the judgment of the jury whether the lines could be run according to the survey; whereas, if not compelled by fixed monuments (such as the plaintiff claimed the hackberry trees to be) to run the second, or back line, in a particular manner, there was nothing in the way, so far as the evidence showed, of running the first and second lines according to the field notes,-only extending the second line so as to meet the east line, the position of which was known. If the north-east corner was not determined by the hackberries, there was nothing to interfere with the location of the Moreno grant in exact accordance with the field-notes, except the one thing of extending the second line far enough to meet the conceded location of the eastern boundary. It did not depend on anything requiring the exercise of judgment on the part of the jury; it was a matter of course. If the position of the eastern line had not been discovered at*all, and nothing had been known but the beginning corner, the field-notes would have furnished the only guide for locating the survey. The position of that line being known, it controlled the survey only in respect to that line, which required the second line to be extended sufficiently to reach it. But if the two hackberry trees, in that line, were also identified as the true north-east corner, then the position of the north line, and the length of the first course, would be controlled by those trees.

We think there was error in not putting it to the jury with sufficient distinctness that the course and distance of the first two lines of the survey must govern, if the evidence was not sufficient to fix the location of the northern line by identifying the two hackberries with those called for in the fieldnotes for the north-east corner of the survey, or by some other marks or monuments.

The judgment must be reversed, with directions to grant a new trial.

(113 U. S. 568)

BROWN, Adm'x, etc., v. UNITED STATES.

(October Term, 1884.)

1. CONSTRUCTION OF A STATUTE-CONTEMPORANEOUS INTERPRETATION.

The contemporaneous and uniform interpretation is entitled to weight in the construction of a law, and in a case of doubt ought to turn the scale.

2. RETIREMENT OF NAVAL OFFICERS-WARRANT OFFICERS-ACT OF AUGUST 3, 1861. Section 23 of the act of August 3, 1861, relative to the pay of officers of the navy upon their being retired, did not apply to warrant officers.

3. SAME-SECTION 5, ACT OF JULY 15, 1870.

Section 5 of the act of July 15, 1870, in providing for the pay of retired officers, applies, in both its terms and meaning, only to officers on the retired list, and not to the compensation of officers retired on furlough pay, and did not abolish the furlough pay-list.

609.