000-acre tract, also introduced, as explanatory of the same, copies of the survey and plat upon which it purported to have been made, and of the entries upon which it was based, and also copies of the patents, surveys, and entries of two earlier grants for 320,000 acres and 480,000 acres, respectively, lying to the eastward thereof, and called for as two of the boundaries of the grant under which he claimed. The following map, made by the official surveyor, is said to represent the locality of the grant according to an actual survey, the plaintiff insisting that the Morris grant should be located as shown by the exterior lines, A, P, H, I, J, M, A; and the defendants claiming that, if A and P are established as corners of the same, then the true location will be represented by the letters A, P, Q2, ZZ, MO, M2, and A.

The grant under which the plaintiff below claimed title to the land in controversy reads as follows:

"Robert Brooke, Esq., Governor of the Commonwealth of Virginia.

"To All to Whom These Presents shall Come, Greeting: Knew ye, that by virtue of eleven land office treasury warrants, Nos. 652, 653, 654, 655, 658, 659, 643, 645, 647, 648, and issued the 28th day of August, one thousand seven hundred and ninety-four, and No. 619, and issued 18th September, 1794, there is granted by the said commonwealth unto Robert Morris, assignee of Wilson Cary Nicholas, a certain tract or parcel of land, containing 500,000 acres, by survey, bearing date the 28th day of October, 1794, lying and being in the counties of Wythe and Russell, the greater part thereof in the former, on Sandy and Guyandotte rivers, and the waters thereof, and is bounded as follows, to wit: Beginning at two poplars and two chestnut trees on a branch of Guyandotte river, and about six miles from the mouth of Little War creek, a branch of Sandy river, being a corner of a survey of the said Nicholas of 480,000 acres, and a survey of 320,000 acres made for said Nicholas and Jacob Kenney, and with a line of the latter, S., 33 degrees W., 6,720 poles, crossing a dividing ridge, and down War creek to the mouth, crossing Sandy river at six miles, crossing Panther creek at nine miles, and crossing several ridges to four white oaks on the northwest bank of Knox creek, and thence leaving said survey, W. 3.840 poles. crossing a creek and some of the branches thereof, and along the spurs of the ridge dividing the waters of the said creek and Peters creek, a branch of Sandy river, to three poplars and a sugar tree by a small branch of Knox creek; thence N. 8,000 poles, crossing Knox creek at about four miles. Sandy river at twelve miles, the mouth of Turkey_creek, and up said creek and the northwest forks of the same, crossing Buffalo creek and Pigeon creek, and the dividing ridge between Sandy and Guyandotte rivers, and Gilbert creek twice, a branch of Guyandotte, to three sugar trees in a bottom of said river, and about 20 poles below the mouth of Gilbert's creek, and thence N., 10 degrees, E., 4,450 poles, crossing Guyandotte river, several branches and some ridges, to pointers; then E., 6,620 poles, crossing Guyandotte river and several branches thereof to three sugar trees and buckeye by a small branch of the same, being the northwest corner of a survey of said Nicholas of 480,000 acres; thence with the same S. 6,800 poles, crossing Huff's or Cain creek, to the beginning. But it is always to be understood that the survey upon which this grant is founded includes 4.000 acres, which having a preference by law to the warrants and rights upon which Robert Morris survey is founded, liberty is reserved that the said 4,000 shall be firm and valid, and shall have the same effect, and may be carried into grant or grants; and this grant shall be no bar, either in law or equity, to the confirmation of the title before mentioned and reserved, with its appurtenances. To have and to hold, the said tract or parcel of land, with its appurtenances, to the said Robert Morris and his heirs, forever. In witness whereof, the said Robert Brooke, Esq., governor of the commonwealth of Virginia, hath hereunto set his hand, and caused the lesser

seal of the said commonwealth to be affixed, at Richmond, on the 23rd day of June in the year of our Lord 1795, and of the commonwealth the 19th.

"Book 31, page 613. "[Seal.]

Robert Brooke, "Land Office, Richmond, Va."

The plaintiff below, by the witness W. D. Sells, offered testimony tending to prove that at the beginning corner, A, he found the corner trees called for in the three grants referred to, marked to correspond with the lines of the 320,000-acre grant; that he ran the first call of the Morris grant (which is coincident with a line of the 320,000acre grant on its course to the point P on the map) to the locality on the northwest bank of Knox creek, where the trees called for as the common corner of the 500,000 and the 320,000 acre tracts were alleged to have stood; that from said point he ran the next line west 3,840 poles to the course and distance called for in the grant, with proper variations, to the point on the map designated H; that he then returned to the point A, and from it ran the eighth line of the 480,000-acre tract, the same being the last line of the 500,000acre tract, north 6,800 poles to M on the map, a distance of 244 miles; that he projected the third line of the grant from the point H, through Pike county, Ky., to where it struck Tug river, picking up the line at that point, and extending it, by actual survey, upon the course and for the distance called for in the grant from H, north 8,000 poles, to I, from which point he ran the next call of the grant north 10 degrees, east 4,450 poles, to J; and that he then ran the next line with such variations as to make it close at the point M, which was the northwest corner of the 480,000-acre grant. The lines thus run, and concerning which said witness so testified, are said by the defendant in error to be the boundaries of the 500,000-acre grant under which he claims. The plaintiff below also introduced the evidence of Daniel Harman, a surveyor, who testified that he had known the 320,000-acre tract since the year 1842; that he had surveyed it two or three times; his evidence tending to prove that some of the corner trees called for at the points A and P on the map, as well as the marks thereon, had been found as called for in the 320,000acre grant. The 500,000-acre grant mentioned certain creeks as being located along the boundary lines thereof, but they were not found. on such lines as they were run by Surveyor Sells; and the plaintiff below, for the purpose of showing that the creeks called for in the grant as "Turkey" and "Gilbert" are not the streams now known by such names, introduced several witnesses whose testimony tended. to show that, according to tradition, the creek shown on the trial map as "Turkey Creek" received that name after the date of the Morris grant, and that Thacker creek had been called "Turkey Creek" in early days; also that Gilbert creek had been known by the name of "War Creek" in former times, both before and since the date of said grant, and that Island creek had formerly been called "Gilbert Creek." On this point the defendants below introduced witnesses in contradiction of such reputation and tradition, and also for the purpose of impeaching the reputation for truth and veracity of the witnesses testifying in that regard in behalf of the plaintiff below.

The defendants below offered testimony tending to prove that the first line of the Morris grant should run from the point A on said map to the point P; that the line north 6,800 poles from A should stop south of the Guyandotte river at the point M2 on the map, instead of running the patent distance to the point M; that if the point A is the true beginning corner, and the point P an established corner of said Morris grant, then the second line of said grant, to wit, west 3,840 poles, should end at the point Q2, by a small branch of Knox creek, and not be extended to the point H, as contended for by the plaintiff below; that the third line would then be found by running from the point Q2 through the mouth of Turkey creek to the point ZZ at the mouth of Gilbert creek; that the fourth line would then run its patent course and distance from ZZ to MO; and that the survey should then be closed by running south 131⁄2 east to M2, the line called for in the grant as east 6,620 poles. The defendants below also introduced as a witness N. L. Reynolds, a surveyor, who in 1884 had surveyed the lines represented on the trial map by the letters A to M2, A to P, P to a point between Q2 and H, ZZ to MO, and part of the line between ZZ and Q2, as also a portion of Turkey creek. They then introduced a surveyor, T. J. Mathews, who had run the lines from A north to the Guyandotte river, from A to P, from P westward on the line PQ2, and a line from ZZ, the mouth of Gilbert creek, to the mouth of Turkey creek. The defendants also offered. the testimony of three surveyors, namely, Sells, Reynolds, and Mathews, tending to prove that James Taylor, who made the survey of the Morris 500,000-acre tract in 1794, had actually located the corner called for on a branch of Knox creek, and that he had also marked as a corner the mouth of Gilbert creek, near the point ZZ, fixing the line by the call for the mouth of Turkey creek; that he had located the corner called for on a branch of Knox creek at the point Q2, and that the fact that he, in his survey, had called for certain timber at the end of the line west from P, would indicate that he was at that point; that on the third line of the survey, on the location contended for by the plaintiff below, the only monuments called for by Taylor that were found were Sandy river and Pigeon creek, while on the line Q2, ZZ, the following monuments called for in the original survey and in the grant were found, to wit: Knox creek, Sandy river, the mouth of Turkey creek, the Northwestern Fork of Turkey creek, the dividing ridge between Sandy and Guyandotte rivers, Gilbert creek, the mouth of Gilbert creek, and Guyandotte river, and three marked sugar trees about 20 poles below the mouth of Gilbert creek; that the fact that Taylor, in his survey, called for three sugar trees, 20 poles below the mouth of Gilbert creek, in a bottom, would indicate that Taylor was also at that point, which is ZZ on the map; that the designation of special trees would also indicate that he was at the point MT, and that Taylor knew the location of those points; that, in his opinion as a surveyor, Taylor was in fact at the corner on Gilbert creek; that he was on Turkey creek, and also on Knox creek; that the course called for by Taylor from the different corners of his survey was generally correct, looking from the corner designated; that the land embraced in the Morris grant was located

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in Wythe and Russell counties, Va., and that no part of the same was supposed to be in the state of Kentucky, in which state about 25,000 acres must be sought for, if the lines of the grant as contended for by the plaintiff below should be established; that the surveys made by Taylor, exceeding in the aggregate a million acres of land in the locality of the Morris grant, were generally incorrect, so far as course and distance were concerned, the lines falling short in some instances from one-third to one-half, thereby reducing greatly the acreage involved; that T. J. Mathews, who surveyed the Morris grant under the direction of the United States circuit court for the district of West Virginia, and N. L. Reynolds, who surveyed it for Robert E. Randall, trustee, under whom the plaintiff below claims, both located the boundary lines thereof, as shown by the points A, P, Q2, ZZ, MO, OM2, and M2A, and that the official surveyor, Sells, in running the line from A, stopped at the point P at the instance and request of plaintiff's counsel; that he extended the line PH to the point H also at their request; and that other points, such as I, J, and N, were located by him, not by course and distance or monuments, but by direction of the plaintiff's counsel.

Considerable testimony was offered by the defendants tending to show title in them to the land in controversy, as also their possession and occupancy of portions of the same; but a full statement of such testimony will not be necessary to either the proper disposition or understanding of the case, as we find it our duty to dispose of the questions involved by remanding the cause for errors found. in the court's instruction to the jury relating to the boundary of the plaintiff's grant.

At the conclusion of the evidence, the court gave to the jury, on behalf of the plaintiff, five instructions, to the first four of which the defendants objected and excepted. The defendants requested the court to instruct the jury in their behalf in thirty-eight instructions, the first six of which the court gave. The rest were refused, to which action of the court the defendants excepted. The first instruction given on behalf of the plaintiff below was a peremptory direction as to the location of the Morris grant, and was in effect a direction to the jury to return a verdict against the defendants. Thereupon the jury found a verdict for the plaintiff. The defendants moved for a new trial, which was refused, when a judgment was duly entered in accordance with said verdict. This writ of error was allowed March 29, 1900.

The defendant in error on the 26th day of November, 1900, filed a motion to dismiss the writ of error for the reason that it appears upon the record of this case that the law of a state, to wit, the act of the legislature of Virginia passed March 15, 1838, is in contravention of the constitution of the United States, and that therefore the case involves the construction and application of the constitution of the United States, the effect of which would be to deprive this court of jurisdiction, so far as the questions raised by this writ of error are concerned. This motion is first to be disposed of.

The plaintiff below offered in evidence, as a part of his chain of title, a statute of the state of Virginia vesting the title to the land in