52 N.C. 407 | N.C. | 1860
WRIT OF ERROR.
On the following case,
The action was brought for cutting cypress trees and making them into shingles. The plaintiff claimed the premises south of the line between Town Swamp and Coniot Swamp, marked in the diagram as "Swash," and the defendant owns the lands to the north of it, (408) marked "Caesar's Island."
The first question raised by the exceptions of the defendant was as to the boundary designated in his deed. The calls important to be noticed are as follows: "thence to the run of Town Swamp (G), thence down the Town Swamp to the swash (A), thence down the swash to Coniot Swamp, thence up the various courses of the said swamp to the first station."
[EDITORS' NOTE: THE ILLUSTRATION IS ELECTRONICALLY NON-TRANSFERRABLE.] SEE
The question between the parties was whether the line should be run straight from the mouth of Town Swamp (A) to the Coniot Swamp, or whether it should follow the course of some running water called "Broad Water," through the swash, which would lead to Coniot Creek, which creek the defendant insisted was reached by Coniot Swamp at C. The plaintiff insisted that the mouth of Coniot Swamp was at B. It was conceded that if the mouth of Coniot Swamp was at B, and a straight line was run from A to B, the defendant would be a trespasser. (409) *316
The defendant offered evidence to show that there was a continuation of the waters from Town Swamp to Coniot Swamp, through the swash, known as Broad Water, and that Coniot Swamp extended to Coniot Creek.
The court charged the jury, "that they must determine where Coniot Swamp was at the date of the call"; that having determined this, "the course of running from Town Swamp would be to start from Swash and then proceed in a straight line through to Coniot Swamp." The defendant excepted to this instruction.
All lands on both sides were claimed under leases from the Tuscarora Indians. The plaintiff had a life estate in a lease of the lands which he claimed (the locus in quo being a part) for ninety-nine years, which would expire in 1916, and a reversion after the expiration of the term. The residue of this lease between the plaintiff's death and the end of the term belonged partly to the children of one Martin Ballard and partly to one Barrington.
The court assumed that the act of Assembly of 1824, converting the estates or interests in the long leases made by the Tuscarora Indians into real estate, did not affect the reversion, and instructed the jury that if the plaintiff was entitled to recover at all, he was entitled to the full value of the timber cut and sawed up and made into shingles. Defendant's counsel again excepted. Verdict and judgment for the plaintiff. Appeal by defendant.
This writ of error, which is field under Revised Code, ch. 33, sec. 19, brings before us for reconsideration the errors which were assigned by the defendant in his bill of exceptions, upon which we gave an opinion, which will be found
1. The first alleged error is in respect to the question of boundary. His Honor, in the court below, had instructed the jury with regard to the disputed line of the deed under which the defendant claimed, "that they must determine where Coniot Swamp was at the date of the call; that having determined this, the course of running from Town Swamp would be to start from the swash and then proceed in a straight line to Coniot Swamp." We held that we could not discover any error in this charge, but the counsel for the defendant now contends that in so holding *317
we committed an error, for that in law the true course of running from Town Swamp to Coniot Swamp was not a straight line from one point to the other through the swash, but was along the edge of the swash, and for this they rely upon the intimation of the opinion of a majority of the Court when this cause was before it on a former occasion. Burnett v. Thompson,
It will be seen that the calls of the defendant's deed, so far as it is necessary to state them, are as follows: "down Miry Branch to the run of Town Swamp, thence down the Town Swamp to the swash, thence down the swash to Coniot Swamp," The case now before us then states that the defendant offered evidence to "show that there was a continuation of the waters from Town Swamp to Coniot Swamp through the swash, known as Broad Water, and that Coniot Swamp extended to Coniot Creek." That is all the testimony given in relation to the swash. Nothing is said of its nature, extent, or position, except the simple statement that there was a continuation of the water from Town Swamp to Coniot Swamp through the swash, known as Broad Water. We learn from this that what is called the swash lies between Town Swamp and Coniot Swamp and extends from one to the other, but are left in ignorance of its boundaries in other particulars, especially as to thenature and direction of its edges. Where any two points are (411) given a call from one to the other is always a straight line, unless there be something additional in the description to vary it, for instance, up or down the meanders of a stream, or along the shore of a lake, or the edge of a swamp. In this case the call is "down the swash," but there are no facts stated to show that any other than a straight line would lead from Town Swamp to Coniot Swamp "down the swash," and hence the defendant's bill of exceptions has failed to give us the means of ascertaining whether his Honor's instruction was erroneous or not. By comparing the statement of the case as it appears before us now with that which was presented on the former occasion, it will be plainly perceived that the variance is too great for the one to be permitted to have any influence over the other.
2. With regard to the question of damages, it may well be doubted whether the additional acts to which the counsel have referred us in relation to the lease of the Indian lands in Bertie County are not private acts, for if they be so we cannot judicially notice them. However that may be, we have looked into them and find that they do not vary in any material degree — certainly they do not enlarge the interest given to the lessee by the act of 1824. Indeed, the latter act having been passed long after those of 1778 and 1802 (chs. 136, 607, Rev. Code of 1820), may well be taken as the true exposition of the legislative will *318 concerning them, and we are unable to add anything to what we said of its construction in our former opinion. If that, then, be the true construction, we have heard nothing in the argument of the counsel upon that point to induce us to change our opinion as to the rule of damages by which the amount of the plaintiff's recovery is to be ascertained.
The result is that the errors assigned by the defendant in his writ of error must be overruled and the judgment be again.
PER CURIAM. Affirmed.
Cited: Dorsey v. Moore,
(412)
