Meekins v. Miller

RodmaN, J. Appellants propound two questions: (1) Is there competent evidence to support the finding fixing the location of the dividing line as contended by appellee? The location of the true line is dependent upon the answer to this question: Where is the beginning point of grant 18,708 issued by the State of North Carolina to L. R. Rogers, 30 January 1922? U. S. Midgett, a witness for appellee, testified he was on the survey on which the Rogers grant was issued. He testified the survey began at point 1, shown on the court map, in accordance with the contention of appellee. The only reason advanced for excluding his testimony is that the witness was not the official chain bearer. The evidence is competent, and, if, as the witness testified, the line was actually run and the corners marked, the line so run is the line of the grant. Anyone present on the survey is competent to testify. Bowen v. Lumber Co., 153 N.C. 366, 69 S.E. 258; Marshall v. Corbett, 137 N.C. 555; Euliss v. McAdams, 108 N.C. 507; Dugger v. McKesson, 100 N.C. 1. The fact that the witness testifying in Marshall v. Corbett, supra, happened to be a chain bearer was not the reason for admitting his testimony. There was other competent evidence tending to establish the beginning corner of the Rogers grant in accordance with appellee’s contention. Appellants’ second question is: Did the court err in the admission and rejection of evidence? It is asserted that the court committed sixty-nine prejudicial errors in taking evidence to find the answer to the single question of fact: Where is the beginning point of the Rogers grant? By consent a court survey with maps to show the contentions of the parties was ordered. Many of the exceptions taken and assigned as error relate merely to explanations made by the surveyor of the court map and how he illustrated on the map the contentions of the respective parties. The surveyor’s explanations were not evidence. Manifestly, statements of where he surveyed and how the maps represented the contentions of the parties were not prohibited. Appellants contend that the beginning point of the Rogers grant is, by express terms, the south line of the Theo S. Meekins land at the Sound. For the purpose of locating the south line of the Meekins land they introduced a grant to E. H. Bailey dated 11 May 1882. The grant for sixty-six acres either on or in Roanoke Sound and east of Roanoke Island begins at a point on the mouth of Rock Hall Creek. This grant was, in 1901, conveyed to R. C. Evans and Theo S. Meekins. Evans conveyed the land to Meekins in October 1908. Both of these deeds recite that the land is in Roanoke Sound. The grant as recorded in [569] Dare County describes the land as on Roanoke Sound. Appellants contend the grant as recorded in Dare is correct and the land is a part of the beach — Bodie Island Beach, and when so located fixed the beginning point of the Rogers grant at letter A on the court map, some 1,500 feet south of Rock Hall Creek. Appellee contends the Bailey grant is Headquarters Island lying in Roanoke Sound, distant 300 or more feet from the beach. He asserts the Meekins land referred to in the Rogers grant is the land conveyed by N. E. Gould to R. C. Evans and Theo S. Meekins in June 1900, the southern line of which runs from the Atlantic Ocean across the beach to Rock Hall Creek and the Sound, thus establishing the beginning corner of the Rogers grant at figure 1, just on the north side of Rock Hall Creek. Appellants’ exceptions to the evidence most strongly urged are directed at the evidence tending to support appellee’s contention that the Bailey grant is not a part of the beach and on Roanoke Sound but an island in the Sound. For that purpose appellee, over objection of appellants, introduced a copy of the grant to which is attached the certificate of the county surveyor with his description and a map of the land covered by the grant. These papers were duly certified by the Secretary of State. The survey and map attached to the certified copy of the grant says that the land was surveyed in accordance with the entry, and is situate in Roanoke Sound and east of Roanoke Island. The map has written on it “Headquarters Island 66 Acres.” It shows as boundaries Rock Hall Creek and Roanoke Sound. The certified copy of the grant, survey, and map were competent. G.S. 8-6. The map accompanying the grant is not conclusive of the location of the land granted, but is a matter which a jury or a referee may consider. Higdon v. Rice, 119 N.C. 623; Redmond v. Mullenax, 113 N.C. 505. Exceptions to testimony as to physical facts tending to support appellee’s location of the Bailey grant cannot be sustained. It was competent to prove that appellants’ location of the Bailey grant would put several of its boundaries on a ridge distant from any water; and when viewed from the air, Headquarter’s Island, as located by appellee, corresponded in detail with the map of Headquarter’s Island attached to the Bailey grant. Maynard v. Holder, 219 N.C. 470, 14 S.E. 2d 415; Roberts v. Preston, 106 N.C. 411; Hough v. Horne, 20 N.C. 369. No reason is assigned to render incompetent the testimony of the present owner of the Bailey grant and others that from their earliest recollection the island was generally known as Headquarter’s Island. We have examined but find nothing in the exceptions and assignments of error which in our opinion justifies a new trial. The judgment is Aifirmed.