79 Tenn. 607 | Tenn. | 1883
delivered the opinion of the court.
Action of ejectment brought by the Coal Creek Company against Disney and others, in which the verdict- and judgment were in favor of the company, and the defendants appealed in error.
The defendants put in a plea disclaiming title to any of the land sued for except several small tracts set out by metes and bounds. There was no contest as to any of these tracts except one, it being conceded that the defendants had the better title to all the ‘others. The tract in controversy is known as the Bowling land, and the contest was over a strip of land on the western boundary of the tract. The land lies in the cove of the mountain, between two forks of Coal Creek, the boundary lines forming an irregular angle down the valley, tHe disputed line being straight, and constituting the hypothenuse of the triangle. The plea of the defendants described the land as beginning on a white oak, ' thence south 50 degrees east 13 poles to a sweet gum, thence north 62 degrees east 13 poles to a beech at the spring, and so on, giving sixteen calls, with the courses, distances, and a tree or trees at the terminus of each call, until they reached the corner from which the disputed line, was run. The difficulty grows out of the thirteenth call and the call of the disputed line.
The grant to Bowling shows on its face that it was based upon a particular entry, and the land “surveyed the 14th day of March, 1828.” The survey was introduced in evidence by the -plaintiff, without any objection on the part of the defendant, and shows that the 13th call is but 40 poles as set out in the plea, and the call of the disputed line for 247 poles. All of the other calls of the survey and grant correspond in every other respect. Each call, as we have seen, gives course and distance, and designates a particular, kind of tree as its terminus. But the land has been cleared up beyond' the bearin-
The proof shows that the trees called for in the grant, wherever still standing, are marked as corner trees. For example, the beach at the spring of the second call, and the sweet gum of the next call, are found marked. The 13th call is 40 poles by the survey, or 70 poles by the grant “to a sourwood near the branch.” The distance of 40 poles “stops right on the bank of a small branch” that runs into Coal Creek on the east, “ at its mouth on a little poor knoll/ say the witnesses, where a sourwood tree would be likely to grow. Another branch runs into the creek from, the west immediately opposite. The point is therefore one likely to be noted in a survey. The line at 70 poles would end in the creek bottom a few poles from the creek, rich land in which the sourwood tree does not often grow. The remaining lines, if run from this point, would strike the woods, but there are no marked trees, such as are designated by the calls. If run from the branch, the lines run out into the cleared fields, and there are no trees,
The law presumes an actual survey where a grant issues^ and on trial in ejectment the grant is conclusive evidence of the fact: Garner v. Norris, 1 Yer., 62. In ascertaining boundary the rule is to find the lines and corners, or such as have been made; and if there are no monuments, then to take the course and distance called for: McNairy v. Hightower, 2 Tenn., 302. To establish boundary it is not indispensably necessary that some, corner or marked line should be proven to exist. If it be proven to have existed, it is sufficient: White v. Hembree, 1 Tenn., 534. The safe rule is to compare the calls with the artificial and natural marks on the ground: Payton v. Dixon, Peck, 148. If a boundary called for can be ascertained, distance must yield, and we must stop at the boundary: Bowman v. Cox, Peck, 364. General or directory calls yield to locative calls, and calls for course and distance, are locative, but not as determinedly so. as calls for natural or artificial objects. "When such objects are called for as special and locative, not merely general or directory, then they .control . course and distance: Simms v. Baker, Cooke, 146; Whiteside v. Singleton, Meigs, 207. Nevertheless a line run according to course an.d distance may control a call for natural objects, though called for as limiting objects,' if such line was actually traced by the compass, and actually marked and fixed
In view of these principles of law, it is clear that the jury were well warranted in finding as a fact that the lines of the Bowling land were actually surveyed and marked at the time the grant was issued, at any rate up to the beginning corner of the disputed line, especially as the defendant's plea expressly admits a survey. And as the locative call for the branch would control the call for distance, they might also find that the 13th call ended at the branch, and this whether the call was for 40 or 70
It is contended, however, that the charge of his Honor, the trial judge, is erroneous in regard to the effect of the plat and certificate of survey as evidence. His Honor said: “ That neither . entry nor survey is necessary to the validity of- a grant. If the grant itself contain such calls as will enable the grantee by reasonable construction to fix it to a certain piece of ground, that is sufficient. But when there has been a survey, and. there are discordant calls in a grant, or doubts with regard to boundaries arising from the calls of the grant, the plat and certificate are admissible to show the intention of the State as to locality. Or, in other words, in the absence of satisfactory proof of marked lines and corners, the plat and certificate of survey are evidence of the locality of the grant. The plat and certificate are to be referred to in explanation of the grant, and to fix its true position but not to destroy it.”
When the consideration of the question of boundary first came before the courts of North Carolina, it was with difficulty that the courts could bring themselves to depart from the calls of the grant under the rule of evidence that parol proof should not be received to add to or detract from a written instrument, and the law to this day is, if the grant be intelligible on its face, (when the calls are applied to the surface of the ground or to the marked lines and monuments of boundary), it must not be departed
The defendants having failed as to part of the land claimed by their plea, were properly charged with costs.
The report of the Referees will be confirmed, and the judgment below affirmed.