Brevard Land & Timber Co. v. Kinsland

MANNING, J. Tbe decisive question presented by this appeal is tbe proper location of tbe divisional line, marking tbe eastern limit of tbe lands reserved for tbe Cherokee Indians in the State of North Carolina, under treaties made between the United States and the Cherokee Nation. The line is known as the Meigs and Freeman line; Meigs being a commissioner appointed by the Federal Government under the terms of tbe treaty with the Indians, and Freeman being tbe surveyor, and was run and marked in tbe year 1802. This line was recognized and accepted by tbe State of North Carolina at tbe session of tbe General Assembly in 1809, ch. 774, 2 Potter’s Compilation of tbe Laws of North Carolina. It is therein enacted “that tbe land lying west of tbe line run by Meigs and Freeman, within the bounds of this State, shall not be subject to be entered,” etc. This line having been run in obedience to tbe treaty power vested by tbe Constitution of tbe United States in tbe Federal Government, and tbe Legislature of this State having expressly recognized it and tbe fact that it was so run, tbe *81 courts must take judicial notice of its existence (Furniture Co. v. Express Co., 144 N. C., 639; S. v. R. R., 141 N. C., 846) ; but its physical location must remain the subject-matter of proof. The great advantage of its uniform actual physical location, of course, is obvious, as a large number of titles are determinable by it. From the best information obtainable, it follows as near a direct line as the very uneven topography of the country through which it passes will admit. Its termini are very well established, one being where Hawkins’ line crosses the Smoky Mountains, and the other being at or near Ellicott’s Eock on the dividing line between North and South Carolina. The evidence offered at the trial so located the line. Assuming, as we must from the records accessible to us and considered by this Court in Brown v. Brown, 103 N. C., 213; s. c., on rehearing, 103 N. C., 221, and Brown v. Brown, 106 N. C., 451, that the line called the Meigs and Freeman line was actually surveyed and marked, the only evidence offered at the trial of sufficient probative force to be submitted to the jury was of its location as contended by the plaintiff. Along this line was discovered marked trees and natural objects indicating a very old marking. The testimony of an employee of the Government that during the years 1881 and 1885, when the witness was in the service of the Government, the true meridian line was used by the Government, and that, running by the true meridian, the Meigs and Freeman line, the course called for would be located as contended by the defendant, can have no probative force when it is not shown that such was the method employed about eighty years theretofore. Along the line thus run there was no evidence of marked objects. We deem it unnecessary to rehearse the treaties and legislation resulting in the location of the divisional line, as these have been fully considered in cases cited, and in the case of Latimer v. Poteet, 14 Peters, 4. Locating the Meigs and Freeman line as contended by the plaintiff, the land upon which the trespass, as alleged in the complaint, was committed, was unquestionably the subject of entry and grant by the State on 20 July, 1796, as it lay east of said line. *82 His Honor should have given, at least in substance, the tenth special instruction requested by the plaintiff; and his refusal to do so constitutes reversible error. Having reached this conclusion, we deem it unnecessary to consider the other exceptions so ably argued before us. The plaintiff is, therefore, entitled to a new trial, and it is so ordered. New trial.