President of Literary Fund v. Clark

31 N.C. 58 | N.C. | 1848

Lead Opinion

This was an action of ejectment, in which the plaintiffs claim under the acts of Assembly granting the vacant swamp lands in the State to the Literary Board and the defendant, under a grant to one Solomon Smith, issued in 1786.

The question in this case is upon the construction of the grant to Smith, which is mentioned in the pleadings. The description is this: "Lying on Pungo Lake, and beginning on the lakeside, at a place known by the name of the Old Landing, and thence south 80 poles; thence west 400 poles; thence north 80 poles; thence east 400 poles, with the windings of the lakewater to the beginning, as by the plat hereto annexed doth appear." The plat referred to is a parallelogram formed by lines from the cardinal points, 80 poles by 400, and does not (59) lay down any part of Pungo Lake. The court below nonsuited the plaintiffs, and they appealed. The decision depends on the length and course of the third line, "north 80 poles." It must be extended, beyond the distance called for, to the lake in some direction; because the next line from its termination is described as not only being "east 400 poles," but, furthermore, as running "thence with the windings of the lakewater to the beginning" on the lake. For it has been decided in a great number of cases, so as to be settled in this State, that the mathematical calls in a deed must give way to those for visible objects capable of being identified; as, for example, marked trees, and, with yet more reason, natural boundaries, as they are called, such as rivers or other streams, mountains, rocks or other enduring monuments. Indeed, the rule has been found to have been laid down in the statute-book itself, as early as 1715, in the provisions for resurveying prior patents, which direct that "the surveyor shall proceed by marked trees, if the same can be found, or by natural boundaries, if any mentioned; and if there be not marked trees, then he shall follow the courses mentioned in the patent, so as the intention of the party first taking up the land may be observed as near as may be." Ire. Rev., 1715, ch. 29. The reason thus given makes it plain that the rule rests upon a presumption that there is less probability of a mistake having been committed in a line identified by marked trees or by a stream than in one to be ascertained by the chain and compass merely; and, therefore, that by having regard to those natural objects the intention of the party will more probably be fulfilled than by respecting the courses and distances only. Then, if the third line here, instead of being described as "north 80 (60) poles," had gone on further "to the lake," there could be no scruple in extending the line to the lake, though it be three or four times the distance. But in truth the calls, taken together, amount substantially to that supposed; for, although the third line is in itself described by course and distance only, yet the line from its termination goes "thence with the windings ofthe lake to the beginning," which necessarily carries the third line itself to the lake. Indeed, the case is precisely the same asHaughton v. Rascoe, 10 N.C. 21, in which one of the points was on this description: "then north 12 degrees, east 530 poles, then along the thoroughfare to the first station"; and it was held that the line, north 12 degrees, east 530 poles, went to the thoroughfare, and the next with the thoroughfare to the beginning.

It was, however, argued at the bar that the plaintiffs were entitled to judgment upon the case agreed, because, at all events, the patent did not cover all the land claimed by the defendant, inasmuch as the line was to go from the point at which the distance gave out, the nearest way to the lake, which is at a point considerably east of that where the third line intersects the lake, when extended due north. But the position is not correct in this case. It would be true, if the third line, pursuing its course, would not touch the lake at all; for, in that case, after completing the distance called for on the third line, the lake, on which the land must be bounded, could only be reached by changing the course, and then the most direct course must be adopted, forasmuch as there can be no other certain one. But neither course nor distance can be departed from further than the one or the other is necessarily controlled by other calls. In all other respects they stand as if they were the sole terms of description. Here the error in the distance — 80 poles — is the only one which is apparent, and that is corrected by carrying the (61) line to the lake. But as the line, when protracted north, actually intersects the lake, that course must be pursued, because there is nothing to turn the line in any other direction.

However the plat annexed to a grant may, in some cases, aid in the interpretation of ambiguous calls, it cannot have any effect in this case, since it does not purport to lay down the lake at all, although the accompanying description calls for it twice, and the act of 1777 expressly requires water courses crossed or touched, and other remarkable places, to be set down.

The omission renders it highly probable that the plat was made without actual survey, and thus deprives it of whatever credit it might otherwise be entitled to. But, at all events, there is nothing on it which can prevent the lines which call for the lake from going to or with it.

PEARSON, J. I concur in this opinion.

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Addendum

The question raised in this case was decided in the year 1795, in that of Sandifer v. Foster, 2 N.C. 237. The call of the third line in that case was "thence south to a white oak, then along the river to the beginning." The white oak stood half a mile from the river, yet the Court decided that the river was the boundary. In a very recent case the same point was decided, and that of Sandifer referred to and approved.McPhaul v. Gilchrist, 29 N.C. 169. There the calls of the grant were: beginning at a red oak on Drowning Creek, thence south three degrees west 179 poles to a pine, thence north eighty-seven degrees west 179 poles to a hickory, thence thecourses of the swamp to the beginning. The distance called for in the third line gave out before reaching the swamp, nor could any hickory be found, either at the termination of the distance or at the swamp. There the decision was that the swamp was the boundary and constituted the back line to the (62) beginning, and that the third line was to be extended to it. In each of these cases the Court rested their decisions upon the calls of the grant. It was apparent, in the first case, that the river was intended to be the terminus, and the swamp in the latter. Those cases differ from the present only in the fact that the grants in the former called for trees as corners; here there is nothing but course and distance. The calls of the Solomon Smith grant, under which the defendant claims, are as follows: lying on the east side of Pungo River and on Pungo Lake, beginning on the lakeside, and running thence south 80 poles, then west 400 poles, then north 8 poles, thence east 400 poles, with the windings of the lakewater to the beginning. If the third line stops when the distance gives out, and you then run directly to the beginning, due east, it is manifest the land will not touch the lake, except at the beginning point; and two important descriptions of the grant as described, to wit, "lying on Pungo Lake" and "the windings of the lakewater," are omitted. The grant has assigned to the third line three descriptions — the course, distance, and the lake. The latter, if called for, controls both the former; this is admitted. It is as much called for in the Smith grant as it was in the grants in either of the cases cited, and those cases establish the law to be that in such a description the natural object is sufficiently called for to designate it as the boundary intended. Adopt the plaintiffs' construction, and the rule is reversed; the artificial boundaries overrule and control the natural — the strong yields to the weak, the permanent to the transient. The plaintiffs' claim to the land in question rests on the act creating a fund for the establishment of common schools, and an act to drain the swamp lands of the State and create a fund for common schools — the first part in 1825, the second in 1836. Rev. St., chs. 66, 67. It is contended that the third line of the Smith grant must stop at the end of the distance, and that the home line (63) must run directly west from that point to the beginning, and the plat annexed to the grant is adduced as proof that it was so actually run. The plat is no part of the grant, and cannot control its calls, nor is there any evidence of an actual survey according to course and distance; but if there was, it could not control the call for the natural boundary. Hurley v. Morgan,18 N.C. 425, and many other cases. We see no error in the judgment of the court below.

PER CURIAM. Judgment affirmed.

Cited: Cooper v. White, 46 N.C. 207; Spruill v. Davenport, ib., 392;Campbell v. Branch, 49 N.C. 314; Mizell v. Simmons, 79 N.C. 188;Redmond v. Stepp, 100 N.C. 219; Brown v. House, 118 N.C. 876; Higdon v.Rice, 119 N.C. 634, 638; Rowe v. Lumber Co., 133 N.C. 437; Whitaker v.Cover, 140 N.C. 284.