Gilmer v. . Young, 29 S.E. 830

Gilmer v. . Young

29 S.E. 830 | N.C. | 1898

Lead Opinion

Fairoloth, C. J.:

The object of this action is to ascertain the true number of acres iu two large tracts of land. It was admitted that the boundaries were all located and undisputed, that the purpose of this action was to determine the number of acres within said bound*809aries, and that the only question was whether the acreage was to he computed by surface measurement or by level or horizontal measurement, according to the rules laid down in the standard works on surveying. The contract was to pay a certain price per acre for all the acres within the admitted boundaries. One clause of the contract was : “Immediately upon the decision of the question of title, an accurate survey shall be made of said tracts of land for the purpose of ascertaining the number of acres in each tract.” Surveys were made on each theory and the difference ascertained. What is an accurate survey, therefore, is the important question.

All the standard authorities being against the method of surface measurement, and this being admitted, there seems to be but little for this Court to consider.

When the State granted its western domain in large bodies, there is no evidence whatever that the State adopted the surface measurement, and there is no ground for presuming that it did so, in spite of the fact that the authorities agree in laying it down that the horizontal measurement is the correct one. His Honor properly adopted the latter theory, from which the plaintiff appealed.

The difference in the two modes of measurement is material. Suppose the body of a large grant should be comparatively flat and level, and that several of the boundary lines should cross high points and deep ravines. Of course the calculation would show many more than the true number of acres, whereas the horizontal measurement would give the true acreage.

Looking for a corner according to course, distance, chops and the like is a different question from that of measuring the distance between two admitted corners, on a given course.

*810In Stack v. Pepper, 119 N.C., 434 although an argument was made in support of the surface theory, the opinion recognizes the horizontal theory by eliminating from the distance called for in the deed, the height of a cliff nearly perpendicular, which lay across the line. The argument of the inconvenience or impracticability of climbing a perpendicular cliff, is without force, because mathematics, being a scientific process, the surveyor, by offsets and like means, can accurately find the upper point of a perpendicular line from the last certain point fixed by the surveyor’s stick.

The plaintiff offered evidence to show that in Western North Carolina it was customary to measure on the surface line, which was excluded. A custom, in order to amount to notice to all persons, must, like the common law, be general. A local, or general local custom, is not notice to any one, unless there be actual knowledge of it, and it will not be treated as entering into the contract without such knowledge. 27 Am. & Eng. Enc. of Law, 743 et seq. The defendant is a citizen of New York, and it is admitted that he had no notice of any alleged local custom when he purchased the land. There was no error.

Affirmed.

Dissenting Opinion

Furches, J.,

dissenting: In my opinion there is nothing in the fact that the contract stated that the number of acres were to be determined by an “accurate survey.” .This, to my mind, means no more than if it had said the number of acres should be determined by a survey of the lands. In either case an accurate survey would be meant. Were this not so, we would have to say that the contract for a survey, without adding the *811word “ accurate,” meant an inaccurate survey. This, to my mind, cannot be so.

I think the whole question depends upon what mode of making the survey should be adopted, whether the horizontal or surface measurement. Both modes are taught in works on surveying, and it is claimed by the defendant that both modes are in practice in North Carolina. The plaintiff offered to prove that the surface measurement was the mode used in Western North Carolina. This evidence was objected to and excluded. It seems to me that it should have been allowed. So far as my knowledge goes, I have never known a survey to be made of lands except by the surface measure; and in my opinion this is the general rule in this State, and if in any cases the horizontal mode has been used, they have been exceptions to the general rule. I do not mean by surface measure that you should go to the bottoms of deep ravines or climb perpendicular cliffs, but that you should follow the undulations of the surface.

It is said there is no evidence that surface measure was .the mode adopted by the State in granting this land a century ago, and there is no reason to presume that surface measure was the mode adopted then. I do not agree to this proposition, as I cannot imagine a surveyor out in the wild mountains of Western North Carolina, a hundred years ago, where there were more free lands than anything else, except free Indians and wild animals, plodding along with a Gunter’s chain and level, making a survey of a 25,000 or 150,000 acre grant of land.

For such reasons as these, I cannot agree to the judgment of the Court.

Lead Opinion

FURCHES, J., dissents, arguendo, in which DOUGLAS, J., concurs. *502 It was admitted that all the works on surveying lay down the level or horizontal methods as the correct mathematical mode for ascertaining the acreage in a given area and boundary.

It was admitted at date of the contract for purchase and long before and since the defendants were residents and citizens of the State of New York.

Upon an intimation by the court of the opinion that plaintiff (808) could not recover, and that the horizontal method was the proper method of surveying lands, the plaintiff submitted to a nonsuit and appealed. The object of this action is to ascertain the true number of acres in two large tracts of land. It was admitted that the boundaries were all located and undisputed; that the purpose of this action was to determine the number of acres within said boundaries, and that the only question was whether the acreage was to be (809) computed by surface measurement or by level or horizontal measurement, according to the rules laid down in the standard works on surveying. The contract was to pay a certain price per acre for all the acres within the admitted boundaries. One clause of the contract was: "Immediately upon the decision of the question of title, an accurate survey shall be made of said tracts of land for the purpose of ascertaining the number of acres in each tract." Surveys were made on each theory and the difference ascertained. What is an accurate survey, therefore, is the important question.

All the standard authorities being against the method of surface measurement, and this being admitted, there seems to be but little for this Court to consider.

When the State granted its western domain in large bodies, there is no evidence whatever that the State adopted the surface measurement, and there is no ground for presuming that it did so, in spite of the fact *503 that the authorities agree in laying it down that the horizontal measurement is the correct one. His Honor properly adopted the latter theory, from which the plaintiff appealed.

Looking for a corner according to course, distance, chops, and the like is a different question from that of measuring the distance between two admitted corners, on a given course.

In Stack v. Pepper, 119 N.C. 434, although an argument was (810) made in support of the surface theory, the opinion recognizes the horizontal theory by eliminating from the distance called for in the deed the height of a cliff nearly perpendicular which lay across the line. The argument of the inconvenience or impracticability of climbing a perpendicular cliff is without force, because mathematics, being a scientific process, the surveyor, by offsets and like means, can accurately find the upper point of a perpendicular line from the last certain point fixed by the surveyor's stick.

The plaintiff offered evidence to show that in Western North Carolina it was customary to measure on the surface line, which was excluded. A custom, in order to amount to notice to all persons, must, like the common law, be general. A local or general local custom is not notice to any one, unless there be actual knowledge of it, and it will not be treated as entering into the contract without such knowledge. 27 Am. Eng. Enc., 743 et seq. The defendant is a citizen of New York, and it is admitted that he had no notice of any alleged local custom when he purchased the land. There was no error.

Affirmed.

Concurrence Opinion

Douglas, J.:

I concur in the dissenting opinion.