Winter et al. v. United States.
Now supposing, for the sake of argument, that all the testimony taken or adduced in this cause, as to planting a cornerstone, is competent, and that none of it ought to be excluded, what does it amount to? Certainly to nothing more than that in 1798 Elisha Winter, the father, planted a large stone, intending thereby to designate the tract granted to him; and that this was done in the presence of the commandant of the post of Arkansas, Don Carlos de Villemont. It is a singular and important fact, that the statement of this person, made more than thirty years ago, when the matter must have been fresh in his recollection, is entirely silent as to what course the stone was to designate, or to what points of the compass the lines were to run from it. This omission could not have proceeded from defect in memory, and it can only be accounted for on the supposition that the act of planting the stone was esteemed to be of so little consequence, that nothing was said on the subject.
As if to admonish us of the intrinsic infirmity of hearsay evidence, and the propriety of excluding it, it is stated by persons examined since the pending of this suit that they understood, principally however from the family of Winters, that this stone was actually intended to designate tbe south-east corner of this tract, and that the lines were to run to the cardinal points of the compass; a statement condemned by the silence of Don Carlos de Villemont, the very person who would have known it if such had been the fact. Could the stone, in the very nature of things, designate or identify any land? Could it not be the corner of four separate tracts? Could not lines from it be run north as well as south, and east as well as west, or north-east, north-west, south-west, or south-east? It was, therefore, an idle and nugatory act, and could not, in the very nature of things, separate any land from the royal domain.
It cannot be doubted that a survey was contemplated and required by the grant itself, a requisition indeed enforced by a general law sanctioned by the monarch himself.
The petitioners, satisfied as they must be that nothing was done equivalent to a survey, or to identify the land, are driven to the flimsy excuse that there was no public surveyor within the district of Arkansas, and thus indirectly admitting a survey
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