| N.C. | Oct 18, 1916
At the close of the testimony, on adverse intimation from the court as to plaintiff's right to recover, he submitted to a nonsuit and appealed. Plaintiffs claimed under a deed containing the following description: "Beginning at the point where the run of Wildcat Branch intersects the main road on the east side thereof; runs thence north 45 degrees east with the eastern boundary of said road 22 chains to a point beyond the 4-mile post at a stone marked `S. N.,' runs thence south 66 degrees east 15 chains to a stake; thence south 17 degrees west 14 chains and 15 links to a gum in the run of Wildcat Branch; thence westwardly with the run of said branch as it meanders to the main road, the point of beginning." And, in connection with same, introduced evidence tending to show that at the time he bought the land and took the deed he had the same surveyed, and, at the end of the call, "thence north 45 east with the eastern boundary of the road 22 chains to a point beyond the 4-mile post at a stone marked `S. N.,'" he placed a stone procured for the purpose, marked "S. N."; this being at a point from 2 to 300 feet beyond the 4-mile post; that the same was a stone he had obtained from Mr. Myers at the marble yard; had these letters carved on it and placed it in the ground about 2 feet, leaving a portion above the ground; that it was so placed there to indicate the corner, and the line was run to it as such and called for as a corner in making the deed, etc.; that the stone had later been removed or dug up by mistake, after it had remained in its position fourteen or fifteen years, and witness could point out on the ground the exact position where the same had been planted. A witness by the name of Lamont testified that he recalled having plowed so as to loosen it, and pulled it up and carried same to his employer, a Mr. Herbert, who had bought a piece of the land himself; that it was near 2 feet long, 4 or 5 inches at the top, sloping larger towards the bottom, and was placed in the ground 18 inches or more, at or near the road, and about 100 yards north of the 4-mile post.
There was opposing evidence on the part of the defendant, and it was further made to appear that if plaintiff's deed could not extend to *332 (281) the stone as claimed by plaintiff, but stopped at the end of the 22 chains, the distance called for, it did not cover the land in dispute.
At the close of the entire testimony the court gave intimation that he would charge the jury "that the stone marked `S. N.' was not a natural boundary; that plaintiff's title would stop at the 22 chains, and that plaintiff could recover nothing beyond that." In deference to this intimation, plaintiff submitted to a nonsuit and appealed.
It is very generally recognized that a call for "stakes" in the descriptive terms of a deed is not sufficient to control course and distance unless the deed itself affords data from which the term "stake" can be given a definite placing. Crowell v. Jones,
While it is said, in these and other authorities, that an artificial monument of boundary is not, as a rule, given the same weight in controlling course and distance that is allowed to natural boundaries, the latter being regarded of a more permanent character and less likely to mislead, the former, in case of conflict, is considered the superior call in reference to course and distance, and controls the same when it is properly identified and placed and called for in the deed as a corner of the land. Lumber Co. v. Bernhardt,
The testimony offered by plaintiff permits the inference, further, that the stone marked "S. N." was so marked, procured, and placed as a corner of the land, at the time of the survey made, with the view and purpose of making the deed, and that said deed was made intending to convey the land so surveyed; and, if this be true, the stone would be the proper boundary, whether called for in the deed or not, coming within the second rule laid down in the case of Cherry v. Slades,
The rule has been applied in several recent decisions of the Court, among others, Allison v. Kenion,
The Court is of opinion, therefore, that on the facts in evidence there was error in holding, as a matter of law, that the line, N. 45 E. 22 chains, stopped at the end of the specified distance, and, on the testimony as it now appears, the issue should be submitted to the jury on the question whether this stone was marked and securely placed as a corner of the land and called for in the deed, and whether the position of same, as originally placed, can now be established by proof.
For the error indicated plaintiff is entitled to a new trial of the cause, and it is so ordered.
New trial.
Cited: In re Hurley,
(283)