LeFevers v. City of Lenoir

Pless, J. Having made claim that the City has taken her land, Mrs. LeFevers has the burden of establishing its location, Hill v. Dalton, 140 N.C. 9, 52 S.E. 273, but it is apparent that she has been unable to do so. From the description given above it will be noted that her land begins on an iron stake, formerly A. A. Craig’s corner on the east edge of Spainhour Street. She frankly confesses [81] she does not know where this corner is and none of her evidence locates it. Neither does her evidence locate A. A. Craig’s Southeast corner, nor his line. She attempts to locate Clarence Setzer’s Southwest corner, her surveyor saying that he began his survey at an iron pipe which Mrs. LeFever pointed out as her corner and which was the sixth and next to last call in her deed, and that by doing so, and running 202 feet toward Spainhour Street, he found the disputed property to be included in Mrs. LeFevers lands, but stated that there was nothing to indicate a line had been run and that nobody pointed out any corner to him except the one referred to above. He said he tried to plat Mrs. LeFevers deed but it will not close. Mrs. LeFevers testified in her own behalf that there were two iron posts which had been there for as long as she could remember, some twenty-five or thirty years; that she did not know who put them there and that she had claimed one of them as her corner. In response to questions as to where she claimed in the street, she replied she didn’t measure it and couldn’t say where she claimed. On cross examination she said she did not know where her Southwest corner is and that the only corner she knew about are the two pipe stakes about 202 feet back from the street; that no one ever pointed out the pin to her and said she could not point out Clarence Setzer’s Southwest corner and did not know of her own knowledge which it is. Her son also testified that the stake Mrs. LeFevers claimed had been there since he could remember but could not otherwise identify it. The remainder of Mrs. LeFevers’ evidence dealt with the value of the land allegedly taken. The office of the description in a deed is to furnish means of identifying the land intended to be conveyed. “ ‘Where a party introduces a deed in evidence, * * * he must prove that its boundaries cover the land in dispute, to give legal efficacy to his possession.’ In other words, the plaintiff must not only offer the deed upon which he relies, he must by proof fit the description in the deed to the land it covers * * Powell v. Mills, 237 N.C. 582, 75 S.E. 2d 759, citing Smith v. Fite, 92 N.C. 319. “The general rule as to this is that in order to locate a boundary of land, the lines should be run with the calls in the regular order from a known beginning,” Powell v. Mills, supra, and here the plaintiff starts at the 6th call of her deed which she says was her corner but has offered no evidence to support this claim. “It is error to allow a jury on no evidence, or on only hypothetical evidence, to locate the land described in a deed.” Skipper v. Yow, 238 N.C. 659, 78 S.E. 2d 600. The City offered evidence to the effect that J. H. Beall and G. F. Harper owned a considerable boundary of land in this vicinity, [82] which included the plaintiff’s property, and that they had sold the pertinent property in 1899. They offered in evidence a map which was marked “map of J. H. Beall and G. F. Harper lands and suburban lots and streets of West Lenoir.” The map was not registered, it was found among Mr. Beall’s papers in the bank. This map showed a fifty foot right of way for Spainhour Avenue. The City also offered what was called the “Montgomery” map of the City of Lenoir which was made in 1911 but not recorded until 1964. It purported to be a map of the City of Lenoir as existed at that time and showed a forty foot right of way on Spainhour Avenue. This evidence, in the form presented, was not sufficient to show a dedication of the street, but does establish that the City was not acting arbitrarily or in bad faith in widening the thoroughfare. It must be remembered that the City had no burden of proving that the property taken was within the right of way shown on the maps. The burden is upon Mrs. LeFevers but her evidence is so vague and uncertain that it will not support a finding in her favor. None of the corners or points in her deed refer to any natural object and since she confesses that she does not know where they are, it is ordered that the judgment in her favor be, and it is hereby Reversed. Moore, J., not sitting. Denny, E.J., took no part in the consideration or decision of this case.