Whitfield v. . Roberson

MANNING, J. Tie only exception in tie record is tie refusal of iis Honor to give tiis instruction prayed by tie defendant: “If tie jury find from tie evidence tiat tie Pewter Hole was tie dividing corner between tie Whitfield and Manning lands and tie survey under call in. plaintiff’s deed, ‘South one degree west to Mill Branci,’ without variation, went to tie Pewter Hole, then they should answer tie first issue, from A to B.” His Honor charged tie jury, in response to tiis prayer, as follows: “Tiat if tie tie jury should find from tie evidence tiat tie Pewter Hole was a comer between tie plaintiff’s and defendant’s land, and should further find from tie evidence tiat tiis was at point B, then their answer to tie issue should be A to B.” Tie line sought to be located is described in tie deed as “south Io west to Mill Branci.” Tie points, B, C and D, on tie plat, are each in or at Mill Branci. One of tie surveyors testified that tiere was a known variation in tie needle of tie compass, and tiat he did not understand it. He testified, “tiat tie usual variation for tie time, according to my understanding, would be two degrees, and allowing tiis variation of two degrees, I'ran south 3° west— tie line A to C.” Tie plaintiff testified tiat, “A to D has always been tie line. Tie line ran between two stumps. I saw survey sixty years ago. It ran tiat line. Tie two pines were then chopped. Have worked up to tie line A to D for fifty years.” Tie defendant’s evidence located tie terminus on Mill Branci at B, tie place known as tie Pewter Hole, and one surveyor testified tiat running tie call of tiis line, without allowing any variation in tie needle, B would be tie terminus. Tie location of tie line was a matter for tie jury; and we *100 think the modified form in which his Honor gave defendant’s instruction was correct. Cherry v. Slade, 7 N. C., 82; Echerd v. Johnson, 126 N. C., 409; Hill v. Dalton, 140 N. C., 9. In the case of Gaylord v. Gaylord, 48 N. C., 367, to which our attention is called by the learned counsel for the defendant, this Court said: “The division line between them (plaintiff and defendant), when the partition was made in 1825, was the course indicated by the compass at that time, and it could not change with the variation of the needle.” It cannot be understood from the above quotation that the learned jurist who wrote that opinion intended that the variations of the magnetic needle should be entirely ignored in the attempt to locate the lines of old boundaries by new surveys. That this cannot be done is a scientific fact well established, but the exact allowance for it is difficult of ascertainment; of course, the actual boundary does not change with the variation of the needle. The quid est demonstrandum would be reached by starting at ‘ A, a point fixed fifty years ago, to reach B, a point fixed by the same survey, and reading the course as recorded by the compass of to-day. It would indicate a different degree in the course of the line, assuming equal skill in the surveyor and equal accuracy in the instruments. The purpose of the present action was to have relocated the divisional line, as it was located in 1859 or prior thereto — the exact date of the original survey does not appear in the record. The two stumps between which the line ran when located, and which were marked as line 'trees, and these stumps being still existent, would, under the decisions cited, be influential in fixing the location of the line. A question of fact being raised for the determination of the jury, we think they were properly instructed by his Honor. Discerning no error, the judgment is affirmed. No error.