Yadkin Lumber Co. v. Bernhardt

Ejectment. Plaintiff introduced two grants covering the land in controversy, bearing date 29 December, 1875, and as to such land, connected itself by mesne conveyances with the grantees, and offered evidence further tending to show trespasses on the same by defendant. "Plaintiff further adduced evidence tending to show that at the time the 100-acre grant, No. 566, was taken out by William Cottrell, James Cottrell had a 25-acre grant immediately east of the northern line of said grant; also a 50-acre grant immediately east of Grant No. 3390; also that William Cottrell had land south of No. 3390, and that the same William Cottrell had a 50-acre grant lying to the south of Grant No. 566. Evidence was also adduced tending to prove that an extension *Page 380 of the north line of Grant No. 566 from figure 2 by way of 5 east as called for in that grant would strike the James Cottrell 25-acre grant and not the William Cottrell 50-acre grant." Defendant offered in evidence Entry No. 1333, as follows: "William Cottrell, Sr., enters and locates 100 acres of land on the Long Ridge Branch, waters of Buffalo Creek, beginning at or near his corner of his 150-acre tract, including all the land between the 150-and 50-acre tracts. November 6, 1854." And the warrant of survey on said entry formally stated and certified as follows: "You are hereby directed and required, so soon as may be, to lay off and survey for William Cottrell 100 acres of land on the Long Ridge Branch, waters of Buffalo Creek, beginning at or near his corner of his 150- and 50-acre tracts, entered 6 November, 1854." And the certificate of survey on said warrant, with plat attached to State's Grant No. 566, containing the description, "Begins at a white pine and two chestnut trees by the Falls of Pounding Mill Branch, and runs north 10 poles to a white pine, corner of a 150-acre tract, the same course with the line of said tract 86 poles to two white oaks on the east side of a hill, then east 167 poles to a stake in the line of a 50-acre tract, thence south with that line 96 poles to a stake in a line running east from the beginning, then with that line west to the beginning." And Grant No. 566, containing the following calls: "One hundred acres laying and being in the county of Caldwell, on the waters of Buffalo. Begins at a white pine and two chestnut trees by the Falls of Pounding Mill Branch, and runs north 10 poles to a white pine, corner of 150-acre tract, the same course with the line said tract 86 poles to two white oaks on the east side of a hill (then east 167 poles to a stake in the line of a 50-acre tract), thence south with line 96 poles to a stake in a line running east from the beginning, then with that line west to the beginning. Entered 6 November, 1854." Plaintiff then introduced a grant to William Cottrell for 50 acres, No. 3390, lying entirely from 566. In order to a better understanding of the questions in controversy and the admissions of the parties, the plat is inserted on opposite page. Admissions were then made as follows: "That the beginning corner of the grant, No. 566, is marked on the court map at the point 1 with the hand pointing towards it, and that such is the beginning corner of said grant. It is further admitted that the second corner in said grant is at the point marked W. P. on map, 10 poles north of 1, and that such point is a corner of a 150-acre tract. It is further admitted that the third corner of Grant No. 566 is at the point marked 2 W. O., with the hand pointing towards the figure 2, as shown on the court map, and *Page 381 [EDITORS' NOTE: THE PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE 162 N.C. 381.] *Page 382 that such point is 86 poles north of the white pine and 96 poles north of the beginning corner — the white pine and two chestnuts by the Falls of `Pounding Mill Branch' — and that the two white oaks at the figure 2 are on the east side of a hill." And further: "That the William Cottrell, senior, who obtained a grant for lands represented on the map as Grant No. 566, was the same person as the William Cottrell who obtained a grant of lands shown on the map as Grant No. 3390, for 50 acres. Plaintiff further admits that Grant No. 3390 is correctly located as shown on the map. Plaintiff further admits that the defendant holds proper mesne conveyances from William Cottrell that constitute a good paper title, nothing else appearing, to such lands as are properly covered by Grant No. 566." It will thus appear that locus in quo as represented on the above plat is included within the letter X and figures 3, 4, 6, and if Grant 566 under which defendant claims is "to be correctly located in exact accord with course and distance," it would be represented on the map by the figures 1, 2, 5, 6, and would not include this land, but if it may be and is properly extended to the William Cottrell 50-acre grant, No. 3390, making the northern line 308, instead of 167 poles, it would then include the land in controversy and be represented on the plat by the figures 1, 2, 3, 4. On the facts in evidence, the court held and so charged the jury, that in locating the defendant's Grant No. 566, the course and distance would control, and the defendant's title, more especially in reference to running the call east 167 poles under the same, would stop where the distance gave out and go where the course carried it, regardless of the additional call, "to the line of a 50-acre tract," the court holding that such addition to the call is too indefinite to affect the location, etc. There was verdict for plaintiff establishing the lines at 1, 2, 5, and 6. Judgment on the verdict, and defendant appealed. In Tatem v. Paine, 11 N.C. 64, it was held: "What are the termini or boundary of grant or deed is matter of law; where these termini are is matter of fact. The court must determine the first, and to the jury it belongs to ascertain the second. Where there is a call for natural objects, and course and distance are also given, the former are the termini, and the latter merely points or guides to it; and, therefore, when the natural object called for is unique, or has properties peculiar to itself, course and distance *Page 383 are disregarded; but where there are several natural objects equally answering the description, course and distance may be examined to ascertain which is the true object; for in such case they do not control a natural boundary, but only serve to explain a latent (465) ambiguity." The principles embodied in this statement have been frequently approved in our decisions, as in Lumber Co. v. Hutton, 159 N.C. 445; Sherrod v.Battle. 154 N.C. 346; Mitchell v. Welborn, 149 N.C. 347; Whitaker v. Cover,140 N.C. 280; Fincannon v. Sudderth, 140 N.C. 246; Bonaparte v. Carter,106 N.C. 534; Murray v. Spence, 88 N.C. 357; Corn v. McCrary, 48 N.C. 496;Campbell v. Branch, 49 N.C. 313. From these and many other cases on the subject, it will appear further that in reference to course and distance the call in deed for the line of another tract of land is to be considered and dealt with as a natural object, and, applying the doctrine, it may be taken as a fully established position in our law of boundary, "That where the line of another tract is definitely called for as one of the termini of a call in a grant or deed, and this line is fixed and established, it will control a call by course and distance." Lumber Co. v. Hulton, supra;Whitaker v. Cover, supra; Fincannon v. Sudderth, supra. It will be noted that in order to the proper application of this principle, the line called for must be "identified, fixed and established," or the position does not govern; but when the conditions exist which call for its application, it is then not a question of whether the writer of the deed or the parties to it intended to take in so much land or to extend the line of the principal deed to so great a length, but, in the language ofHenderson, J., in Tatem v. Sawyer, supra, "Where there is a call for natural objects, and course and distance are also given, the former are the termini and the latter merely points or guides to it." And if the line is properly fixed and established pursuant to recognized rules it makes no difference whether it was marked or unmarked. Corn v. McCrary, 48 N.C. 496. The learned judge who tried the cause was no doubt familiar with the principle to which we have referred, but held that it should not prevail in this case, being of opinion that the call of defendant's grant and deeds, to wit, "thence east 167 poles to a stake on the line of a 50-acre tract," was too indefinite to permit the reception of (466) parol testimony either to identify or place the corner. But the authorities more directly relevant do not sustain this view. Thus inLawrence v. Hyman, 79 N.C. 209, the call of the deed was, *Page 384 "Beginning at the north corner of the store," the store standing equally east and west and having two north corners, held that the case presented a latent ambiguity, to be explained by parol testimony. In Graybeal v. Powers, 76 N.C. 66, the call in dispute was, "thence S. 33 West 100 poles to a stake in Simeon Graybeal's line," and it was held, among other things: 1. A call for the line of another tract of land is "a natural boundary," and controls course and distance. 2. In running the call, the line must be run straight, so as to strike the line called for, making as small a departure as may be from the course and distance called for in the grant. 3. Where there are two lines answering the call, the jury, in determining which is meant, may consider the circumstance that lines were run by the surveyor and corners made at the time of the survey, leading to one of them. And, speaking more directly to the facts, Pearson, C. J., delivering the opinion, said: "In our case there is a natural boundary, `Simeon Graybeal's line,' but it so happens that Simeon Graybeal owned two tracts, one a 30-acre tract, which I will call Tract No. 1, and another tract which I will call Tract No. 2, lying west of Tract No. 1, and distant from it some 30 or 40 poles. It is evident from that plat that `the Simeon Graybeal line' called for is either the north or south line, bounding Tract No. 1 on the west and marked C D, or it is the north and south line, bounding Tract No. 2 on the east and marked F E. Which of these two lines is the one that is called for is `the governing fact in the location of the defendant's grant,' and ought to have been distinctly left to the jury with instructions to consider all the evidence and the surroundings of the case, including the marked line and corners, etc." Again, in Topping v. Sadler, 50 N.C. pp. 357-359, the call was, "thence southerly 80 poles to the patent line, thence with the patent line," etc., and it was held: "Where one of the calls in a deed was for a patent line, and there was one patent proved, a line of which would be reached by extending the line in question beyond the distance called for, and no other patent was alleged to be near the premises, it was held that the call was sufficiently definite to allow the extension of the line to the patent line." The former corners of the William Cottrell 100-acre Grant No. 566 having been fixed, a proper application of the principle of these decisions will require that on the call of said grant, "then east 167 poles to a stake in the line of a 50-acre tract," the question be submitted to a jury to determine what 50-acre grant was intended and where the same *Page 385 is properly placed, and on considering the question, the fact that the same William Cottrell had a 50-acre grant to be reached by a slight deflection of the course and extending the line from 167 poles to 308 poles, and that both on the entry and warrant of survey of Grant 566 for 100 acres as part of the description, "beginning at or near the corner of his 150-acre tract, including all the land between the 150- and 50-acre tracts," are circumstances relevant to the inquiry. If the jury are unable to identify the 50-acre tract called for or to satisfactorily place the same, the courses and distances as given in the grant should prevail. For the error in excluding the testimony, defendant is entitled to a new trial, and it is so ordered. New trial.