Jackson ex. dem' Waggoner v. Murphy — 3 Cai. 82

Majority

p. 82

James Jackson ex. dem’ Peter Waggoner and others against James Murphy.

Headnote

Where the plaintiff and defendant claim under adjoining patents, the court cannot grant a rule ordering the lessors of the plaintiff to permit a survey to be taken of the boundary line, but if it appear necessary for the defence in the suit that it should be ascertained, they rule to stay proceedings till the lessors consent to a survey, or judge at the circuit may postpone the cause on the same principle.

EMOTT, moved for a rule, ordering- the lessors of the plain- . , , tiff to permit a survey to be taken by the defendant of the boun cjal.jes anc¡ marked trees of a patent under which he claimed» „ , . . - , , on an affidavit stating, that it was necessary for his defence to ascertain the fines of it. but that a person sent by him for that ' . purpose, had been prevented hy the agent of the lessors who de. rived chle under an adjoining grant,

, Were we to this application, could we enforce ¡qle leave we had given ? Suppose an action of trespass brought, would this be a justification ? But, it does not appear to me tliat our interference is necessary. The judge at the circuit would, upon the grounds, now shewn to the court, postpone the cause. You may however take your rule to stay proceedings, r till the lessors of the plaintiff enter into a consent rule for having a survey made.