Stewart v. . Stephenson

Hoke, J. Plaintiff alleged his ownership of a tract of land on waters of Black River, and described the same by metes and bounds, in which the southwest call, and the one .significant in this controversy, is as follows : “To a small gum, the old Atkins corner; thence as the old Atkins line down the various courses of the southwest side of the Black River Swamp, about 115.40 chains to a stake, etc., represented on the court plat by the line from 1 to 14.” The defendant alleged ownership of the tract adjoining on the southwest, and alleged and offered evidence tending to show that the line was not the true line of plaintiff’s property, but that the same was the *83 main runlet of the river, and termed in the deeds Black Eiver, the locus in quo being between these suggested lines. As appears from the verdict, the jury have established the line as contended for by plaintiff, and, on judgment pursuant to the verdict, defendant resists the validity of the plaintiff’s recovery: “1. Because his Honor charged the jury, in effect, that though the grant of 1881 might not include the land, the plaintiff could recover if the jury were satisfied by the greater weight of the evidence that plaintiff had entered and occupied the land exclusively and continuously for twenty years under known and visible lines and boundaries, asserting title, etc., next before action brought, the objection noted being that the plaintiff was thus allowed to recover land not embraced in his complaint,” etc. The fault of defendant’s exception here is that, in his complaint, plaintiff makes no reference to his grant as the source of his title. His allegation of ownership is general; that he owned the land bounded on the southwe.st by the southwest border of the Black River Swamp, and, this being true, it was open to plaintiff to avail himself of any source of title that he might be able to establish by the testimony. Taylor v. Meadows, 169 N. C., 124, and the authorities cited. There was testimony in support of the position, and both sides claiming and the testimony all showing that title was out of the State, either under one or other of the grants offered in evidence, twenty years occupation was the proper and determinative period. Eevisal, secs. 383 and 384. Defendant excepted, further, that his Honor admitted the field notes of the surveyor, Greene; but this objection, also, must be overruled. The location of the grant to plaintiff around the southwest side of the Black Eiver Swamp was a relevant circumstance on the issue, plaintiff claiming under said grant both as to title and color of title. It was proved that the surveyor was dead, and that these field notes were made by him when he was on the land making the survey for the very purpose of taking out the grant, and the testimony was properly received under our decisions admitting hearsay evidence in questions of private boundary, Sullivan v. Blount, 165 N. C., 7; Lamb v. Copeland, 158 N. C., 138; Hemphill v. Hemphill, 138 N. C., 504; Tow v. Hamilton, 136 N. C., 357; and, also, as declarations identified and established as made by the surveyor in the course of his business, Ray v. Castle, 79 N. C., 580; Lockhart’s Evidence, sec. 143. True, in this last case, the field notes were rejected, but that was on the ground that they were not shown to have been “original and cotemporaneous,” both of which circumstances are present here. There is no error, and the judgment of the court below is affirmed. No error.