Cherry v. Andrews

Winborne, J.. Plaintiffs challenge, on this appeal, the correctness of the judgment from which appeal is taken, on several grounds. However, after careful consideration of each exception, we are constrained to hold that error of sufficient import to justify disturbing the judgment is not shown. I. The first and second exceptions may he treated together. They relate (1) to the overruling of plaintiffs’ motion for judgment on the report of the referee, and (2) to the submission of the first issue. It is contended that no issue was submitted in defendants’ exception on the finding of fact No. 5, — “which presented the pivotal and controlling point in the case,” that is, “that the line in the Tayloe mortgage and the Ben Eaynor deed went to the run of the swamp.” And it is contended that the first issue does not arise on the pleadings and findings of the referee. Moreover, it is stated, in reference to these exceptions, that “it is apparent that the report of the referee has been treated as of no more significance than a judgment of a J. P.” But be that as it may, these exceptions relate to straw threshed out on former appeal. Eeference to the exceptions filed by defendants, as shown in the records on former appeal and on this .appeal discloses that exception is made specifically to finding of fact No. 5, and the first issue tendered by defendants is expressly directed to this finding-of fact. And on the former appeal the question of the suffi- *266 cieney of the exceptions and tender of issues to preserve defendants’ right to a jury trial, was raised, and considered, and determined. It is true that the former appeal also challenged the ruling of the court in granting the nonsuit. But since it was held (1) that whether the call “thence down the branch to Oashie Swamp” terminates at the edge of the swamp or extends on to the run of it, involves a matter of fact to be found by the jury upon the evidence offered, and (2) that the issue tendered was sufficient to withstand successful attack, confirmation of the report of the referee was not in order. It must be borne in mind that the reference had in this action was ordered under the provisions of the statute providing for compulsory reference. G.S. 1-189. Under this Section it is declared that “the compulsory reference . . . does not deprive either party of his constitutional right to a trial by jury of the issues of fact arising on the pleadings, but such trial shall be only upon the evidence taken before the referee.” And the decisions of this Court hold that the report of the referee, consisting of his findings of fact and conclusions of law, would not be competent as evidence before the jury. See Bradshaw v. Lumber Co., 172 N.C. 219, 90 S.E. 146, and Booker v. Highlands, 198 N.C. 282, 151 S.E. 635. And it is not inappropriate to say that while the first issue might have been framed differently, it arose upon the pleadings, G.S. 1-196, and was, and is deemed sufficient to present to the jury the controverted question as to whether plaintiffs own the swamp land lying between their highland and the run of Oashie Swamp. Issues submitted are sufficient when they present to the jury proper inquiries as to all determinative facts in dispute, and afford the parties opportunity to introduce all pertinent evidence and to apply it fairly. Lister v. Lister, 222 N.C. 555, 24 S.E. 2d 342, and cases cited. II. Exceptions Nos. 3 to 9, both inclusive, grouped under two headings, bring into focus the principles of law for proper construction of the description in question. Exception No. 3 relates to three deletions from instructions requested by plaintiffs as follows : “It is a general rule of law for the construction of deeds, that where a deed calls for a swamp, or creek not navigable it extends to the run or thread of the stream”; “If the run of the branch can be defined and appears to extend beyond the edge of the swamp and into the swamp, the law carries that line to the run”; “You may consider the nature and character of the branch, beyond the edge, if it is definite, then this deed and its call would go on to the run of the swamp,” — eliminating the words, “then this deed and its calls would go to the run.” It is insisted that these requests are not met in the general charge. And Exceptions 4 to 9, both inclusive, are directed to portions of the charge as given, and “are collected,” as plaintiffs say “as presenting the *267 same question, whether the construction of this deed and its line by the call To the swamp’ followed by the next call Thence up the swamp,’ presents a WHAT and not a WHERE.” Exception 6 is directed to this charge: “As I understand it the deed from the mortgagee to Benjamin Raynor has the same description as this mortgage. You see this description does not say, whether the edge of the swamp or the run of the swamp but says, Thence down the branch to Cashie Swamp,’ and therefore it becomes necessary to decide in this case, and it is the question for the jury to decide as to whether the description takes it to the edge of the swamp or to the run of the swamp.” Exception No. 1 is to that charge, immediately following that to which Exception No. 6 relates, reading: “If the deed had said specifically that it went to the run of the swamp, then there would not have been any question about it, or if it had said to the edge of the swamp there would have been no question about it, but when it says ‘down the branch to Cashie Swamp,’ it leaves the matter in such a state that the court cannot determine it as a matter of law but it is for the jury to say what was meant, taking into consideration all the evidence and the surrounding facts and circumstances described by the evidence.” And, continuing, the court charged: “I charge you as a matter of law that where a creek is called for by name, nothing else appearing, the call must go to the running stream, and when neither the side line or the bank, nor the middle line is expressed, the conclusion of law is, that the channel or middle line is intended. This rule applies when the natural object is unique or has properties or characteristics peculiar to itself and which admit of its easy and certain identification, as a creek or river. There is then no ambiguity in the call, and resort to oral evidence is not necessary in order to fit the description to the thing. (But when, as in this case, the Cashie Swamp is called for it is for the jury to say upon the evidence what was intended, whether the edge of the swamp' or whether the run of the swamp).” The portion in parenthesis only is the subject of Exception No. 8. And continuing the court further charged: “The law in this situation will not say arbitrarily whether it is the run of the swamp or the edge of the swamp, but it is a question of fact for the jury to determine upon all the evidence as to which was intended by the call in this mortgage and in this deed.” Exception No. 9 is to court charging that the first issue, reading it, will be submitted to the jury. Then, after stating the contentions of the parties, the court, at the request of plaintiffs, gave these instructions: “The question is whether that mortgage from Watson Tayloe to Wm. J. Myers . . . and the deed from ¥m. Myers to Benj. Raynor . . . covered the land in controversy. *268 That question seems to turn upon the question whether the call in the mortgage and the deed: Thence down the branch to Cashie Swamp’ extends to the run of that swamp. The court is leaving that question to you. In determining this question, the jury may consider whether the branch, by a perceptible run or line, reaches the run or thread of the stream. Another aid to the jury is the consideration of the next line, which in your case is: Thence up the swamp’ to what is admitted to be a tract owned by Benj. Raynor at the time this deed was made. You may also consider the nature and character of the branch beyond the edge and if it is definite. The plaintiffs contend that they have shown, to your satisfaction, that this branch does extend beyond the edge and on to the run of the swamp.” In connection with these portions of the charge, it is to be recalled that on the former appeal, it is held by this Court: “In the light of applicable principles of law declared in the case of Rowe v. Lumber Co., 133 N.C. 433, 45 S.E. 830, particularly in respect of the ‘Watkins 50-acre tract,’ and again in same case reported in 138 N.C. 465, 50 S.E. 848, in which Brooks v. Britt, 15 N.C. 481, is cited with approval, it would seem that whether the call Thence down the branch to Cashie Swamp’ terminates at the edge of the swamp or extends on to the run of it, involves a matter of fact to be found by the jury upon the evidence offered.” In Brooks v. Britt, supra, in opinion by Gaston, J., the Court had this to say: “His Honor was unquestionably correct in laying it down as a principle in law, that the swamp was a natural object more certain, and therefore more worthy of reliance than the distances called for in’ the grant; that this swamp was in law a boundary of the patent, and that the defendant’s grant must be extended to it, if the distances would not reach, and restrained by it, if these distances overreached it. But we are of opinion that he erred in pronouncing that if there was a certain and known channel for the water to run in said swamp, the call of the grant was for that run. Whether the run in the boggy and sunken land, or the margin of such boggy and sunken land, was the call of the grant, depended upon facts fit to be proved, and proper to be passed upon by the jury. If, when the grant issued, the low grounds were known as the Swift Creek Swamp, and the run or channel was not termed the swamp, but had another appellation, such as Swift Creek, or east prong, or any other distinctive name, then the call of the grant was for those low grounds, and not for the run. If, on the contrary, the run was then known as Swift Creek Swamp, and the bottom lands were distinguished from it as the low grounds of that swamp, then indeed, the call was for the run, and not for the low grounds. If each were- known by the same appellation, and indiscriminately called -Swift Creek Swamp, then there were two *269 natural objects, either of which corresponded with the call of the grant, and which of these was intended, might and ought to be determined by-reference to other matters of description in the grant, or to extrinsic facts, rendering the one or the other more probable.” And in Rowe v. Lumber Co., supra, in respect of the Watkins 50-acre tract, Walker, J., wrote for the Court: “The question raised in regard to this tract is as to its proper location, and this largely depends upon the determination of its first or beginning call . . .” And further on in the opinion in this same case, the Court said: “But the plaintiffs contend that the third call, which is Thence said (Old Field) branch to Catskin,’ should stop at the edge of the swamp, or, at least, that the matter should be left to the jury so that they can determine what is meant by ‘Catskin,’ — that is, whether the edge or the run of the swamp was intended. The defendant insists that the call should go to the run, but if, as a matter of law, the run is not called for, then the jury should decide as a matter of fact where the end of this line should he. We cannot say that either the edge of the swamp or the run is the objective swamp, but it should be submitted to the jury to ascertain, upon the evidence and under the instructions of the court, where the end of the third line or the fourth corner of the tract is, and then a line should he run from this corner according to the call of the deed to the first station. It will he seen, therefore, that the true location of this tract is to be determined by the same general principle which was applied in the case of the 64-acre tract. When the call is at all ambiguous or uncertain it is always a question of fact for the jury to decide what was meant, and to fix the boundaries according to what they may find from the evidence, under -the law as given to them by the court, was the real intention of the parties to the deed.” And in respect to the 64-acre tract — the -court declared: “We still adhere to the doctrine so well stated by Gaston, J., in Brooks v. Britt, supra, that where a swamp is called for, whether the run is in the boggy and sunken land, or the margin of such boggy: .and .sunken land, is the call of the grant,, depends ‘upon facts .fit .to be.proved and proper to be passed upon by the jury.’” Testing the portions of the charge under consideration and the itilings in respect of the deleted portions' of requested instructions, by the exceptions thereto, it appears that both the charge and the rulings , aje in substantial accord with the principles, of- law on which the case: was decided on former appeal. These-principies-therefore constitute-'the law of the case, — and are binding on this appeal. ' ' : All. other exceptions have.be.en considered and in them no prejudicial error is made to appear. Hence-in the judgment on-the verdict-, we find. No error.