Sullivan v. . Blount

AlleN, J. It is well settled in this State that declarations are competent as to tbe location of lines and corners when it appears (1) that tbe 'declarant is dead at tbe time tbe declaration is offered as evidence; (2) that the declaration was made before a controversy bad arisen as to tbe boundary; (3) that tbe declarant was disinterested at tbe time tbe declaration was made. Sasser v. Herring, 14 N. C., 340; Bethea v. Byrd, 95 N. C., 311; Hemphill v. Hemphill, 138 N. C., 504. Tbe declarations offered in evidence by tbe plaintiff meet every requirement of tbe law, ’ as they are declarations of deceased persons, made ante litem motam, and tbe declarants not only bad no interest in tbe Sandy Bottom tract of land, tbe boundaries of which are in controversy, but their declarations were against interest, as it would have been advantageous to them to establish tbe corner at tbe figure 1, instead of at tbe letter A, as their lands were east of tbe land of tbe plaintiff, and tbe letter A is east of tbe figure 1. - Tbe fact that tbe declarant owns an adjoining tract of land does not render tbe declarations incompetent (Bethea v. Byrd, 95 N. C., 309; Lewis v. Lumber Co., 113 N. C., 55), unless made in bis own interest. Chrisco v. Yow, 153 N. C., 435. There is no conflict between these authorities and Hagaman v. Bernhardt, 162 N. C., 381, relied on by tbe defendant, as in tbe latter ease *11 the declaration was excluded upon the ground that the declar-ant was pointing out his own boundaries, and that the declaration was in his own interest. It is equally well settled that evidence of common or general reputation is competent in the location of private boundary if (1) the reputation had its origin at a time comparatively remote, and (2) existed before the controversy, and (3) attached itself to some monument of boundary, or natural object, or is supported by evidence of occupation and acquiescence tending to give the land some fixed or definite location. Tate v. Southard, 8 N. C., 45; Dobson v. Finley, 53 N. C., 496; Yow v. Hamilton, 136 N. C., 357; Hemphill v. Hemphill, 138 N. C., 504; Lamb v. Copeland, 158 N. C., 138. It is true, the expressions “remote” and “comparatively remote” are indefinite; but as said in Lamb v. Copeland, supra, as the principle admitting evidence of common reputation “was established; of necessity, when from changing conditions and the absence of permanent monuments better evidence of boundary could not be procured, so the time may vary to some extent, as the facts and circumstances may show that the necessity does or does not exist.” In Bland v. Beasley, 140 N. C., 633, it was held that a reputation having its origin seventeen years before action commenced was not sufficiently remote, and in Ricks v. Woodard, 159 N. C., 648, the same ruling was made as to a reputation of twenty years; but it was also held in the latter case that a reputation existing for forty "or fifty years was remote within the meaning of the law, and that when evidence of such reputation is introduced, it is competent to introduce evidence of -a common reputation for a shorter period in corroboration. Applying these principles, the evidence as to common reputation was competent. It had existed for forty years or more, according to one witness, and before any controversy as to boundaries, and it attached itself to a natural object — the holly. The evidence of the other witness Auge, as to reputation, does not fix the time, but h.& was evidently speaking of a remote period, and in any event it was competent as corroborative evidence. *12 It may be well to note that evidence of reputation only applies to questions of boundary, and that it is not admissible to prove the ownership of the land. Locklear v. Paul, 163 N. C., 338. In other words, it is permissible, under the conditions stated, to prove the eommon reputation’ as to a corner or a line, but not as to who- is the owner of the land. The instruction prayed for was properly refused, as there was ample evidence to support the verdict in favor of the plaintiff. No error.