9 N.C. App. 618 | N.C. Ct. App. | 1970

MALLARD, Chief Judge.

The plaintiff Highway Commission and the additional defendant Duke contend that the trial judge committed error in finding as a fact and concluding as a matter of law that the property of the original defendants extended to the eastern margin of the right-of-way line of U. S. Highway No. 21 as it existed on 19 March 1962 and on the date of the taking.

The description of the tract which original defendants contend includes the 21-foot strip of land involved in this controversy is contained in the deed dated 19 March 1962 from Duke to the original defendants which reads as follows:

“Beginning at an iron pin, corner with Tract No. 1 above described and corner with other lands of the parties of the second part; running thence the following courses and distances with elevation 760 feet above mean sea level, U. S. G. S. datum: N 33 deg. 38' W 31.5 ft. to an iron pipe, S 75 deg. 20' W 42.7 ft., N 63 deg. 48' W 70.5 ft., N 14 deg. 48' W 104.1 ft., N 2 deg. 24' W 121.9 ft., N 23 deg. 47' W 195 ft. to an iron pipe, S 86 deg. 05' W 75.8 ft. to an iron pipe in the eastern margin of N. C. Highway right of way for U. S. Highway No. 21; thence the following courses and distances with said highway right of way limit: N 23 deg. 10' E 10 ft., N. 24 deg. 17' E 100.8 ft., N 17 deg. 56' E. 157.1 ft., N 16 deg. 35' E 136.1 ft., N 14 deg. 21' E 99.9 ft., N 12 deg. 12' E 133.6 ft. to a point in a road; thence S 85 deg. 35' E 4.5 ft. to an iron bolt in a road in the line of other lands of the parties of the second part; thence S 6 deg. 24' E 1056.7 ft. to the beginning, containing 3 acres, more or less, as shown on plat dated March 7, 1962, marked Mtn. Island File No. 739-B, which is hereto attached and incorporated as a part of this instrument; and being a part of the land conveyed by F. Lee Torrence and others to Catawba Manufacturing and Electric Power Company by deed dated July 13, 1928, recorded in Book 717, Page 273, in the Mecklenburg County Registry.”

The map attached to this deed and which by reference was incorporated as a part of the description shows that the western boundary line of the land conveyed to the original defendants follows the eastern line of the right-of-way of U. S. High*623way No. 21; however, the courses and distances shown on this map, as well as in the description contained in the deed, will not follow the right-of-way line as stipulated by the plaintiff and original defendants herein. The map also shows that the eastern highway right-of-way line is 96 feet from the center of the highway.

Duke argues that therefore there is a 21-foot strip of land between the western boundary of the land of the original defendants and the eastern right-of-way line of the highway. Duke further contends that it either conveyed this 21-foot strip of land to the Highway Commission or dedicated it for a highway right-of-way by the map attached to the original defendants’ deed. Duke offered no evidence, but in its further answer says that it “believes that it later conveyed to the North Carolina State Highway Commission a right of way for Interstate Highway No. 77 (sic), and it does not claim, any part of the land involved in this action.” (Emphasis added.) This allegation is not clear as to what land Duke “believes” it conveyed to the Highway Commission. It is clear, however, from its further answer that Duke does not claim any part of the land involved in this action, except a flood and flowage easement thereon, and there is no controversy presented on this record concerning this easement.

At the time Duke filed its answer disclaiming any part of the land involved in this action (except the flood and flowage easement), the plaintiff and the original defendants had already stipulated as a matter of record in the case that on the date of the taking herein, the right-of-way for U. S. Highway No. 21 was 150 feet, extending 75 feet on each side of the center line of the highway. The location of U. S. Highway No. 21 is not in dispute.

The Highway Commission and Duke contend that the court found “that the highway right-of-way was an artificial monument controlling (1) the map referred to in defendants’ deed and (2) the metes and bounds description referring to other monuments, in determining the boundary of defendants’ westerly property line,” and in so finding committed error.

In 2 Strong, N. C. Index 2d, Boundaries, § 2, it is said:

“Where the calls are inconsistent, the general rule is that calls to natural objects control courses and distances. A *624call to a wall, or to another’s line, if known or established, is a call to a monument within the meaning of this rule, as is a call to a highway. * * *” (Emphasis added.)

In Cutts v. Casey, 271 N.C. 165, 155 S.E. 2d 519 (1967), it is said: “Where there is a conflict between course and distance and a fixed monument, the call for the monument will control.”

In the case of Brown v. Hodges, 232 N.C. 537, 61 S.E. 2d 603 (1950), a highway was held to be of such permanent character as to become a monument of boundary. See also Franklin v. Faulkner, 248 N.C. 656, 104 S.E. 2d 841 (1958).

In 12 Am. Jur. 2d, Boundaries, § 65, p. 603, the general order of preference as between different calls is stated:

“Where the calls for the location of boundaries to land are inconsistent, other things being equal, resort is to be had first to natural objects or landmarks, next to artificial monuments, then to adjacent boundaries (which are considered a sort of monument), and thereafter to courses and distances. * * *”

We are of the opinion and so hold that the evidence supports the findings of fact and the findings of fact support the conclusions of law, and Judge Clarkson correctly applied the established rules of construction relating to conflicts appearing in a description contained in a deed. The order appealed from is affirmed.

Affirmed.

Judges Parker and Hedrick concur.