| N.C. | Dec 16, 1914
Civil action to recover damages for wrongfully cutting timber on land claimed by plaintiff.
Verdict and judgment for plaintiff, and defendant excepted and appealed. Plaintiff claimed the land in controversy under a deed from E. J. Ervin, clerk and master, to father of plaintiff, dated 17 January, 1848, and in which the northern line of plaintiff's (685) tract is described as follows: "Thence north 172 poles with Moore's line to a black oak on John Wakefield's line; thence east 72 poles with Wakefield's line to a Spanish oak; thence same course 56 poles to a chestnut on Joseph McGimsey's line," the northern line, shown on map, as claimed by plaintiff, being from a black-oak stump east to 9, *748 and offered evidence to show continuous occupation under said deed, but south of the locus in quo.
Defendant, owning land to north of plaintiff's tract, claimed under a grant of State to Robert and William Tate, dated 30 May, 1795, and mesne conveyances passing such title to defendant, one of the mesne owners being John Wakefield, who had executed one of the deeds in the line of defendant's title; said grant being represented on the map by the letters, A, B, C, D; C, D being the south line of defendant's tract as claimed by him, and 50 poles south of plaintiff's northern line as contended for by him.
The land in controversy, therefore, from which defendant had cut the timber was between these two lines: black-oak stump to 9, to which plaintiff claimed, and the line C, D, parallel thereto and 50 poles further south, to which defendant claimed.
In order to show that the line C, D was the correct line, defendant offered evidence tending to show "that the line C, D was a marked line and had been pointed out by parties, now dead, both prior to and shortly after the Civil War, as the line of the Robert and William Tate grant, and also as the John Wakefield line, said John Wakefield being one of the immediate grantors under whom defendant claimed." And, in order to further strengthen the position that the John Wakefield line, called for in the plaintiff's deed, was the marked line C, D, defendant offered a witness, Joe Tate McGimsey, who testified that he had known the line C, D as a marked line since 1879.
Defendant then proposed to ask this witness if, prior to the institution of the suit and as far back as 1880, the line C, D was, by general reputation in the community, known and called by any certain name; and again, "By what name was the line on the map designated as the line C, D generally known and called?" Counsel stating that he proposed to show by this witness that, as far back as 1880, the line C, D was generally known and reputed to be the John Wakefield line. An objection by plaintiff was sustained, the evidence excluded, and exception duly noted. It is the well recognized principle in this State that evidence of common reputation will be received on questions of private boundary, the limitation being, "That such reputation had its origin comparatively remote; that it existed before the controversy, and that it attached itself (686) to some monument of boundary or natural object or is supported by evidence of occupation and acquiescence tending to give the land some fixed and definite location." Sullivan v. Blount,
A correct application of the principles as stated and sustained in these opinions are, in our opinion, against the ruling of his Honor on the question presented. There were facts in evidence tending to show that the line C, D was a marked line as far back as the late Civil War, and before that, and was pointed out then by old persons, now dead, as the line of the William and Robert Tate grant and as the John Wakefield line; and, when it was proposed to show by the witness McGimsey that this same line was known by him to be a marked line as far back as 1880, and that the general reputation then prevailing was that it was the John Wakefield line, the evidence should have been received. On the facts presented, it was competent, as being sufficiently remote within the meaning of the decisions, and was clearly so as corroborative of evidence tending to show a much earlier origin of this general reputation. The evidence, therefore, was competent and, being on the principal question presented and determinative of the issue, we must hold that its rejection constitutes reversible error, entitling defendant to a new trial. It is so ordered.
New trial.
Cited: McKay v. Bullard,