113 S.E. 776 | N.C. | 1922
Lead Opinion
Civil action for the recovery of damages for alleged trespass on land.
The land in controversy is represented on the plat by the letters A, B, C, D, E, F, A. The plaintiffs contend that this land is covered by the following grants, under which they claim title: (1) a grant to Thomas A. Haughton, dated 28 June, 1902, represented by the letters C, D, E, F, 1, 2, 3, C; (2) a grant to F. H. Von Eberstein, dated 28 June, 1902, represented by F, 4, 5, 6, 7, 8, 2, 1, F; (3) a grant to Grimes and Von *46
[EDITORS' NOTE: THE MAP IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
The defendant offered the following: (1) a grant to A. T. Roe for 84 acres, dated 17 March, 1851; (2) a deed from A. T. Roe to Martin W. Walker for 200 acres, dated 19 October, 1851; (3) a deed from W. J. Walker and others, heirs of Martin W. Walker, to the defendant, dated 25 June, 1916. Defendant also claimed possession under color of title for the requisite length of time.
Plaintiffs introduced a certified copy of the original entry (dated 12 April, 1852), map, and grant to Martin W. Walker, dated 17 June, 1853. For the purpose of aiding the location, other record evidence was introduced by the parties. The grants and deeds were admitted to have been properly drafted and executed for the conveyance of the lands therein described. The following are the issues and answers:
"1. Has the defendant Guion Lee trespassed on that part of the land described in the compliant not claimed by said Lee in his answer? Answer: `Yes.'
"2. If so, what damages, if any, are plaintiffs Hoge and wife entitled to recover for same? Answer: `$125.'
"3. Are plaintiffs Hoge and wife owners and in possession of that part of the land described in the complaint shown on the map used in the trial as A, B, C, D, E, F, A, and being that part of land claimed by the defendant in his answer? Answer: `No.'
"4. Has the defendant Guion Lee trespassed on said land shown on said map as A, B, C, D, E, F, A? Answer: `No.'
"5. What damage, if any, are plaintiffs Hoge and wife entitled to recover therefor from defendant Lee? Answer: ............"
Appeal by the plaintiffs, and by the defendant. PLAINTIFFS' APPEAL The plaintiffs and the defendant contend that their respective muniments of title include the land in controversy. The plaintiffs claim under grants issued in 1902, a deed executed by the State Board of Education in 1917, and mesne conveyances, while the defendant asserts title under a grant acquired by A. T. Roe in 1851, and subsequent conveyances. The defendant contends that the true location of the land described in his grant and deeds is as represented on the plat by the lines *48 A, B, Y, X, A, and that the locus in quo is within these lines. On the other hand, the plaintiffs insist, among other things, that the tract described in the Roe grant contains only 84 acres, and is located as represented by the lines X, Y, , Z, X, and that it will include between 1,400 and 1,600 acres if the western boundary is extended to A, B. Indeed, the plaintiffs contend that the Roe grant lies within the boundaries of the land granted to Martin W. Walker, and that the western boundaries of the defendant's title extend only to the line C, D, E, F, or to the eastern boundary of the locus in quo. It is therefore apparent that the location of the land described in the several grants and deeds was a matter of vital importance in the determination of the controversy.
The land granted to A. T. Roe is described as follows: Beginning at the mouth of Juniper Swamp, running S. 45 W. 150 poles with said branch to the head; thence S. 30 poles to the county line; thence with said line S. 45 E. 150 poles to the main run of the creek swamp; thence with the run of the swamp to the beginning. In the deed from Roe to Martin Walker, and in other record evidence, the "head of the swamp" is designated as a part of the description of the land. The plaintiffs introduced evidence tending to show that the head of the swamp was at Z, or at NN, and the defendant offered evidence tending to show the location to be at A. The materiality of evidence tending to show this location is at once evident. If the head of the swamp is at A, the Roe grant and the Roe deed include the disputed land; but otherwise, if at Z or NN. On the direct examination of Duffey Toler the defendant inquired whether A was known in that locality as the head of Juniper Swamp, and the witness answered, "Yes, sir. I have only known the very point myself, or had it pointed out to me five or seven years, and have only known the branch indicated from the letter A for the same length of time." The plaintiffs objected to the question, excepted to the admission of the evidence, and in apt time moved to strike the answer from the record, and again excepted to his Honor's adverse ruling.
That natural monuments called for as the boundaries of grants and deeds generally control or prevail over courses and distances is a rule which has been repeatedly sanctioned and applied in the adjudications of this Court. But in order to make the rule effective it is essential that the monuments or objects relied on be identified, or their location admitted. When such location is admitted, or is beyond controversy, the description may become practically a matter of legal interpretation. To this principle may be referred Slade v. Neal,
His Honor, recognizing these principles, submitted to the jury the location of the head of Juniper Swamp, and to the contention of the parties on this question, Toler's testimony was distinctly pertinent. In fact, it was a circumstance particularly to be considered in its tendency to impeach as guides to the location of the head of the swamp the courses and distances called for in the grant to Roe and in the deed from Roe to Walker. In Tatem v. Paine,
The plaintiffs' exceptions are not identical with those presented inWaters v. Simmons,
Exception 49 is addressed to the following paragraph in his Honor's charge: "The court charges you that in locating the A. T. Roe grant it is not competent to consider the calls in the junior grant, or other papers of later date, for the purpose of locating this grant; and any reference to the A. T. Roe grant in the Martin Walker grant, introduced by the plaintiffs, would not be considered by you in determining the location of the A. T. Roe grant, for the purpose of confining the Roe grant to a location within the boundaries of the Martin Walker grant."
In a line of decisions extending from Sasser v. Herring,
As our view of the law requires the submission to another jury of the third, fourth, and fifth issues, the remaining exceptions need not now be considered.
New trial.
DEFENDANT'S APPEAL
Addendum
The defendant's appeal from the judgment rendered on the first and second issues presents the question of his liability for alleged trespass on land situated west of the line A, B. There was evidence tending to show that the plaintiffs had title to this land; that the defendant did not claim it; and that W. J. Dunn, under a contract with the defendant, not knowing the exact location of the defendant's claim, cut timber on the western side of the line referred to. Where a servant is ordered to cut trees on his master's land and cuts some outside his master's boundaries, ordinarily an action may be maintained against the master for the trespass. 6 Labatt, sec. 2397. But here there was evidence from which the jury might reasonably infer that Dunn cut the timber in question under the defendant's authority, or, in any event, that the defendant received a part of the proceeds derived from the timber, and thereby ratified Dunn's trespass; and it is evident that the jury found as a fact, under his Honor's charge, that the defendant had either authorized or ratified Dunn's wrongful act. The motion for nonsuit and the requested instruction referred to in the seventh exception were therefore properly denied. The remaining exceptions relied on in the argument have relation to the motion and instruction which were declined by the court, and require no separate discussion. In the defendant's appeal there is
No error.
