Tyre v. Morris , 5 Del. 3 ( 1848 )

Ejectment for 158 acres of land called "Hobb's Choice."

It was a question of location dependent on a boundary line beginning at a white oak; and the parties differed as to the position of this tree. A white oak, said to be the beginning bounder of Hobb's choice, was at the end of an old marked line of trees (which defendant claimed as the true line:) another white oak, standing several yards further east, and called by plaintiff the "Cow horn bounder," was at the end of a more recently marked line, which he claimed to be the true line of Hobb's choice. The cow horn oak was marked externally; the defendant's white oak had no visible marks. By advice of Wm. B. Ewing, surveyor, it was cut down and split open, and near the heart four distinct rows of marks, three in each row, were found, and one hundred and nineteen years' growth counted over them, making the oak eighteen or twenty years old when marked, if marked at the time of the patent. A section from the heart of the tree was produced in court, with a very distinct scar in it, covered by a large growth. The date of the patent was 1714.

After the evidence was closed, and one of plaintiff's counsel, had opened,

Mr. Bayard declined to argue the cause for the defendant, and insisted on the jury taking it, either without or with a charge from the court, as the court should see fit.

Mr. Layton resisted this, and insisted on his right to address the jury on the facts; which the court refused to allow, and the jury took the case. The court charged briefly on the law.

Verdict for defendant.