Daniel v. Tallassee Power Co.

Adams, J. After this action had been instituted the defendant brought a proceeding before the clerk of the Superior Court for partition of the land owned by the parties and asked that the area appropriated by the defendant be allotted to the Power Company at a value to be estimated without regard to the use for which the property had been taken. The present plaintiffs, who were defendants in that action, filed an answer and upon the joinder of issue on the question of location the proceeding was transferred to the civil issue docket. At the July Term both actions were on the calendar for trial on the same day, the case at bar having precedence in point of time. When the ease was called the defendant moved that the trial be restricted to an issue of title and upon determination of the issue to have the land partitioned. The court denied the motion and the defendant excepted. This Court has frequently applied the equitable principle that a tenant in common upion the partition of land is usually entitled to an allotment of that part of the common property on which in good faith he has made improvements and that its value is to be assessed as if no improvements had been made. Pope v. Whitehead, 68 N. C., 191; Collett v. Henderson, 80 N. C., 337; Simmons v. Foscue, 81 N. C., 86; *277 Cox v. Ward, 107 N. C., 507; Pipkin v. Pipkin, 120 N. C., 161; Fisher v. Toxaway Co., 171 N. C., 547; Layton v. Byrd, 198 N. C., 466. These were proceedings for the partition of property, and if the Power Company were the actor the question proposed would demand consideration; but here the cause of action is set forth in the complaint filed by the plaintiffs upon which the defendant joins issue in its answer. The fact that the proceeding for partition is pleaded as a further defense does not affect the allegations in the complaint. That the defendant cut wood from the land is not seriously contested; the disagreement has reference to the quantity and value of the wood or timber that was cut and removed. The cutting of trees may be waste and for waste one tenant in common may sue another. C. S., 891; Hinson v. Hinson, 120 N. C., 400; Morrison v. Morrison, 122 N. C., 598. We are of opinion, however, that the court inadvertently admitted incompetent evidence to the prejudice of the defendant. The boundaries of the land set out in the complaint are as follows: “Beginning at a maple on the bank of Flat Swamp Creek, running thence south 77 deg. 8' east 1,959 feet to a rock and iron pipe, Oath Garrick’s corner, on the line of tract No. 2; thence north 6 deg. 30' east 264 feet to a stake; thence N. 60 deg. 30' E. 1,470 feet to a stone heap; thence N. 12 deg. 45' W. 1,164 feet to an 18" ash stump on the east bank of Bear Branch; thence down the meanders of the same 17 chs. to Elat Swamp Creek;thence down the meanders of Elat Swamp Creek to the beginning, containing 125 acres, more or less.” These boundaries are not taken from any of the deeds and are at variance with those embraced in the deeds introduced by the plaintiffs and by the defendant. The land on which the water is said to have been ponded was known as the Woodson Daniel land and the adjoining tract as the Harris or Healing Springs tract. The former tract is described in a deed from J. O. Hedgecoek to Woodson Daniel and James Lane: “Beginning at a maple on the bank of Elat Swamp; thence on a conditional line partly on east course 31 chains and 50 links to a pine; thence north 4 chains to a stake; thence east 19 chains to a post oak; thence north 26 chains to a black oak; thence west 7 chains to an ash on the bank of Bear Branch; thence down the meanders of the same 17 chains to Elat Swamp; thence down the meanders of the swamp to the beginning, containing 125 acres, more or less.” There is no controversy as to the location of the first two lines; nor is it denied that they correspond with the first two lines of-the description given in the complaint. The dispute relates to the succeeding calls, those in deed being “thence east 19 chains to a black oak,” etc., and those in the complaint “thence north 60° 30' E. 1,470 feet to a stone heap, thence north 12 deg. 45' W. 1,164 feet to an 18" ash stump on the east bank of Bear Branch,” etc. *278 T. W. Daniel, testifying in bebalf of tbe plaintiffs said that he was present at a survey of the two tracts made between 1870 and 1875 when William Harris and Woodson Daniel, the owners of the adjoining tracts were present, and that a line was run from an ash on Bear Branch to a stone heap on the north side of the Turner lot and thence to a stake four chains north of the Oath Garrick corner, which is the end of the first line in the Hedgecock deed, and that the lines thus run, represented on the plat by the yellow figures 1, 2, 3, were agreed on by the parties. The defendant objected to this evidence on the ground that as the lines indicated by the yellow figures are not called for in any of the deeds the plaintiffs have undertaken by parol evidence to establish new agreed lines and to contradict the unambiguous description in the deeds. We think the evidence should have been excluded. The decisions of this Court are in support of the defendant’s position. If the calls in a deed are sufficiently definite to be located by extrinsic evidence, the location cannot be changed by parol agreement unless the agreement was contemporaneous with the making of the deed. The instrument speaks for itself and where there is no ambiguity in the calls, as suggested in Caraway v. Chancy, 51 N. C., 361, “It seems most dangerous to carry the exception to the general rule of law.” The principle is clearly stated and maintained in later cases. Shaffer v. Hahn, 111 N. C., 1; Buckner v. Anderson, ibid., 572, 577; Shaffer v. Gaynor, 117 N. C., 15; Haddock v. Leary, 148 N. C., 378; Boddie v. Bond, 158 N. C., 204; Woodard v. Harrell, 191 N. C., 194. Where the location of a particular call in a deed is in doubt and the object is to find out where the line is a different principle prevails. Taylor v. Meadows, 175 N. C., 373; Wiggins v. Rogers, ibid., 67; Kirkpatrick v. McCracken, 161 N. C., 198. Parol evidence is not admissible “to fit the description to the thing,” when the calls in a deed are unambiguous and the lines sought to be established differ entirely from those in the deeds. For error in the admission of evidence the defendant is entitled to a New trial.