LaRoque v. Kennedy

AlleN, J., after stating tbe case: Tbe plaintiff objects to tbe admissibility of tbe deed to Richard Caswell, on two grounds: (1) That tbe evidence of tbe clerk, Plato Collins, as to tbe bandwriting of Stephen White, who was Register of Deeds of Lenoir County in 1855, is incompetent. This objection is fully met by tbe interesting and valuable .opinion of Justice Hoke in Nicholson v. Lumber Co., ante, 59. In that case a cer — 371 — tificate of survey of a land warrant, dated in 1841, and signed by Euel Windley, surveyor, was admitted in_ evidence on tbe testimony of John B. Eespess, Jr., which was as follows: Q. Do you know Euel Windley’s handwriting? A. I know it in this way: he raised my father and was very devoted to him, and often in looking over his papers, which I have now, my father would show me and say, “This is grandfather’s signature.” Q. Have you seen a great deal of that writing? A. Yes, sir. Since I have been surveying I have seen qtiite a lot of it. By family reputation, my great-grandfather was a surveyor, and my father was a surveyor. A small map, marked “A,” was handed to witness, and he was asked: Q. Whose handwriting is this, if you know? A. That is Euel Windley’s, from the source of information I have. By the Court: Q. Do you mean to say that somebody told you that that identical paper was in Euel Windley’s own handwriting? A. Not this one. By counsel for defendant: Q. From the writing you have seen purporting to have been written by Euel Windley, is that, or is it not, his handwriting? A. Yes, sir; that is his handwriting. And the Court, in speaking of this' evidence, says: “On these facts and accompanying testimony, we are of opinion that the plat with the certificate was properly received in evidence, being admissible as an ancient document, and also by reason of competent testimony tending to show that the certificate just below the plat and giving the corners of same, was signed or subscribed in the handwriting of Euel Windley, deceased. . . . The means of acquiring the requisite knowledge to enable one to form and express an opinion as to handwriting has, in case of ancient documents, and of necessity, been extended to include a witness who, in the course of his duty, has had full opportunity and frequent occasion to observe and note the handwriting in other ancient documents, entirely free from suspicion, and states that he has thus been enabled — 372 — to form a satisfactory opinion as to tbe bandwriting of tbe ancient document in question. 3 Taylor Evidence, Ames’ Notes, 1229, 21; Chamberlain Best on Evidence, p. 231; Starkie on Evidence, sec. 521.” (2) Tbat no evidence was introduced to locate tbis and other deeds. Tbis objection cannot be considered under an exception to tbe admissibility of tbe deed. If tbe defendant offered a certified copy of tbe deed, and identified tbe bandwriting of tbe officer who made tbe certificate, it was competent evidence; and if afterwards be failed to locate tbe land, tbe defendant should have called tbe matter to tbe attention of tbe court by a motion to withdraw tbe deeds or by a request for a special instruction. It is not, however, essential tbat evidence of location should come from witnesses for tbe defendant, or from living witnesses. Tbe deeds may contain descriptions which, without tbe aid of extrinsic proof, may indicate where tbe property is situate. In tbis case tbe witnesses described tbe locality minutely, and according to all tbe evidence there was an ancient mill on tbe land claimed by tbe defendant and on South-West Creek. In tbe deed to Caswell and in tbe other deeds tbe land is particularly described, and is said to be on South-West Creek, and to include tbe grist-mill on said creek. We think tbe deeds were properly admitted. We also think tbe evidence of Jesse Evans was competent, restricted, as it was, by bis Honor. Tbe first exception to tbe charge cannot, be sustained. We must assume tbat tbe judge correctly stated tbe admission of tbe parties, and if by inadvertence be did not, it ought to have been called to bis attention at tbe time, and cannot be made tbe subject of exception for tbe first time in tbe case on appeal. Tbe other exceptions to tbe charge are upon tbe grounds: (1) Tbat there is no evidence where bigb-water mark was in 1844. (2) Tbat there is no evidence of an adverse possession by tbe defendant. — 373 — (3) Tbat there is no evidence of a user by the defendant that will confer an easement. In our opinion, there was some evidence as to the location of the high-water mark in 1844, and of a user by the defendant for a sufficient length of time to confer an easement. A fair interpretation of the evidence of the witness Loftin is that in 1851 the water was maintained higher than now, and that at that time the dam was old and worn down, and there is other evidence of marks on the trees and land, and of the changes in the land, which were properly left to the jury. If the evidence of the defendant is accepted as true, and we must do so in considering the question whether there is evidence, there can be no doubt of a user under a claim of right for more than 20 years, which would be necessary to confer an easement. The objection that there is no evidence of an adverse possession is based on the following statement of Chief Justice Ruffin in Green v. Harmon, 15 N. C., 161: “The overflowing of land hy an act not done on it, but by stopping a water-course below, on one’s own land, is not an ouster of the owner from the land overflowed. There is no entry, which is necessary to make a disseizin. The remedy for the injury is not trespass, but an action on the case for the consequential damages. Howard v. Banks, 2 Bur., 1113. Hence, however long it may continue, it affords, of itself, only a presumption of a grant of the easement, and not of the conveyance of the land.” The principle declared is not applicable to the facts in this ease, as according to all the evidence here the dam was on the land of the defendant and the water does not extend beyond the claim of the defendant. It is, however, manifest, from an examination of the whole case, that it was not the purpose of the Court to declare that overflowing land, claimed under a deed, is not an act of adverse possession, as is shown by the concluding language of the opinion: — 374 — “Although cutting of timber and overflowing the land do not amount, of themselves, to an ouster, yet, being done without the leave of the owner, they give character to the entry into another part, and also furnish evidence of it to the owner. The jury might fairly infer from it, not only that the defendant did claim the land, but that the lessor of the plaintiff knew he claimed it and was not a mere wrongdoer without color of title.” The case involves, almost entirely, questions of fact, and having been fairly tried, we cannot disturb the judgment. No error. DEFENDANT’S APPEAL IN SAME CASE. The defendant’s appeal presents two questions. Upon the coming in of the verdict, the defendant moved the court for judgment for the entire cost of the action, including the cost of the survey. The court declined to tax the cost of the survey against the plaintiffs, on the ground that one-half had been paid by each party as the survey proceeded, and the court stated -.that in his opinion the bill was exorbitant, and declined to allow it to be taxed in the bill of costs. Defendant excepted. The defendant then moved the court to adjudge the cost of the action to be charged upon the separate real and personal estate of the feme plaintiff, Nora A. LaRoque. The court declined to grant the motion, and the defendant excepted. The record discloses that the cost and expense of the survey were advanced' equally by the plaintiffs and defendant upon the demand of the surveyor, as the survey progressed, and at the time of the trial one-half of the cost of the survey had been paid by the plaintiffs and one-half by the defendant. The entire cost of the survey was about $750. It is provided in section 1504 of the Revisal that the court may order a survey when the boundaries of land shall be drawn in question in any pending action, “and for such surveys the court shall make a proper allowance, to be taxed as among the costs of the suit.” ' , — 375 — The amount of the allowance is within the discretion of the court, after considering the evidence as to the work done, but the judge cannot decline to act because he thinks the charges made by the surveyor are exorbitant. The statute requires him to fix the allowance, and directs that it shall be taxed as costs. The payments to the surveyor without an order were made by the parties at their own peril, and cannot control the action of the judge. The defendant was not entitled to have the judgment for costs made a charge against the separate estate of the .feme plaintiff. The ordinary judgment for costs was rendered against her, which was proper. The cause is remanded, to the end that the allowance to the surveyor be fixed, and that it be taxed as costs, to the use of the defendant; provided that in no event shall such amount to the use of the defendant exceed the amount he has paid. Reversed.