45 S.E. 830 | N.C. | 1903
This is an action brought by the plaintiff to recover damages for a trespass alleged to have been committed by the defendant in cutting timber in Catskin Swamp. The liability of the defendant depends upon whether the boundaries described in the grants and mesne conveyances, under which it claims the disputed land, stop at the edge or margin of the swamp or extend to its run. Plaintiffs introduced in evidence a grant from the State, dated 20 December, 1893, to the plaintiff John W. Rowe, and a deed from the latter to his coplaintiff, L. P. Dosh, *346 for an undivided one-half interest in the land granted. It was admitted that the grant and deed covered the locus in quo.
The defendant introduced grants and mesne conveyances by which it claimed to have acquired the title of three tracts of land, one on the north side of Catskin Swamp, known as the "Casteen tract" and two tracts on the south side of the swamp, known as the "Watkins 64-acre tract" and the "Watkins 50-acre tract."
The case was tried in the court below at December Term, 1900, and a verdict and judgment were rendered in favor of the defendant. The plaintiff appealed to this Court, where a new trial was awarded at February Term, 1901. (
It will be convenient to take up and discuss separately the exceptions of the defendant applicable to each tract of land in the order in which the several tracts are mentioned in the case, that is, the "Casteen tract," the "Watkins 64-acre tract" and the "Watkins 50-acre tract," as there is some difference in the facts and principles relating to each of them.
At the last trial the defendant introduced in evidence a grant from the State to Daniel Atkinson, dated in 1840, and several mesne conveyances which it alleged connected the deed under which it claimed with said grant. Among these conveyances was a deed from Alexander Casteen to Ezekiel Chadwick, dated in 1859, which describes the land as follows: "Beginning at a yellow pine at the edge of said swamp, runs thence north 4 degrees, west 127 poles to a stake at the edge of the bay; thence with said bay to the head of Bear Branch; thence with Bear Branch to Catskin Swamp; thence with the run of said swamp down to the first station." After introducing this deed, the defendant tendered witnesses for the purpose of proving adverse possession of the land under it continuously for twenty-one years. The evidence was excluded by the court, upon the ground, as stated at the time, that the Casteen deed did not cover the land alleged to have been trespassed upon. The court made this ruling because it was of the opinion that the calls of *347 the deed stopped at the margin of the swamp and did not extend to the run. In this ruling of the court we think there was error.
When this case was before the Court upon the rehearing it (436) was held that the fourth or last call of the deed from Casteen to Chadwick so controlled the third call as to require that the latter should be extended to the run of Catskin Swamp. The Court further held that with this construction of the deed, and in view of the evidence and the probable finding of the jury, the plaintiff "must fail as to the tract north of the run," that is, the Casteen tract. We do not see why this was not a most explicit declaration of the Court as to the correct location of the boundaries of the deed, and this decision, we think, should have been recognized and followed by the learned judge who presided at the trial. Not only was it so decided by this Court in this case, which makes it res judicata as to the parties to this litigation, but the decision is clearly in accordance with the law as previously laid down by this Court. Indeed, the principle which governs in ascertaining the location of this particular call may now be considered as well established, if not elementary, in the law of boundary. A natural object or boundary called for in a deed, such as a river, creek, or the run of a swamp, will control course and distance, and the line must terminate at it, however wide it may be of the course and distance specified. Cherry v.Slade,
Applying these principles to the facts of our case, we hold as a matter of law that the third line of the Casteen deed should be run down (438) Bear Branch to Catskin Swamp, which is a natural boundary, and then, if the run has not already been reached by a direct line to it usque ad filum aquae, and thence, according to the next call, with the run of the swamp. If the last call does not reach the first station, by following the run of the swamp, it must stop in the middle of the run at a point opposite the first station, and then a direct line must be run from that point to the beginning, which we think is in accordance with the decision in Hays v. Askew, supra, and the calls of this tract must be closed as we have indicated.
Watkins 64-acre tract: This tract is described in the deed of Stephen Keys to O. F. Watkins, dated in 1868, as follows: "Beginning on Mulberry or Middle Branch, Benjamin Watkins' corner; thence north 59 east 3 rods to a pine; thence north 15 east 50 poles to a stake; thence north 10 west 108 poles to a stake; thence north 78 west 27 poles to a cypress at the edge of Merick's Creek; thence down said creek to the mouth of said branch; thence up the run of said branch to the first station, containing, by estimation, 50 acres more or less." The next preceding deed in the defendant's chain of title has the same description, except that it calls for a cypress at the edge of Catskin Creek instead of Merick's Creek, but there was evidence introduced by the defendant to the effect that the two names described one and the same creek. There was also evidence tending to show that Catskin Creek "meant the whole run and all the creek and lowland"; in other words, that Catskin Creek was *349 identical with Catskin Swamp. We think, therefore, and so hold, that the defendant's deed should have been admitted, so that the jury could have determined upon the evidence offered by the respective parties, and under the instructions of the court, as to what was in fact meant by the call for Catskin Creek or Merick's Creek. If the parties intended to call for the run of the creek, then the defendant's deeds cover the locusin quo; but if they intended to call for the margin of the swamp, they do not. The court, therefore, erred in excluding the defendant's deeds and in the instructions given to the jury on this part of (439) the case.
The court seems to have excluded these deeds upon the supposition that this Court had ruled at the former hearing of the case that when Catskin Swamp was called for it meant the edge of the swamp, and that the line should stop there. We do not so understand the former ruling. It is true that Furches, C. J., in Rowe v. Lumber Co.,
We still adhere to the doctrine so well stated by Gaston, J., in Brooksv. Britt, supra, that where a swamp is called for, whether the run in the boggy and sunken land, or the margin of such boggy and sunken land, is the call of the grant, depends "upon facts fit to be proved and proper to be passed upon by the jury"; so that in this case, where there is such a call, it must be governed by that principle, and likewise, where there is a call for Catskin or Catskin Swamp or Catskin Creek, whether the call refers to the run or the boggy or sunken land, it must, under the same authority, depend upon facts "fit to be proved" and proper (440) to be considered by the jury. This ruling will apply to all deeds not calling for the run in such manner as to leave no doubt that it was intended as one of the lines of the tract. *350 Watkins 50-acre tract: The calls of the deed for this land are as follows: "Lying on the south side of Catskin Swamp, containing 100 poles square, containing 50 acres, be the same more or less, lying and being on Catskin, beginning in the mouth of Blank's Bridge Branch, thence along said branch to Elsie Alexander's line; thence along said line to the Old Field Branch; thence said branch to Catskin; thence up the meanders of Catskin to the first station, with all woods, waters, and every other appurtenance thereunto belonging. "The question raised in regard to this tract is as to its proper location, and this depends largely upon the determination of its first or beginning corner. If that is once fixed it will not, perhaps, be difficult to ascertain its true boundaries. It begins at the mouth of the Blank's Bridge Branch, which flows into Catskin. The defendant contends that the mouth of the branch is at the run of the swamp, and the word "Catskin," as used in the clause, refers to the run; but, in view of the evidence in this case, we cannot decide as matter of law whether the contention of the defendant is right or not. The mouth of a stream is defined to be that part of it where its waters are discharged into another body of water. It cannot mean the place where the lowland of the branch meets the lowland of Catskin Swamp, as contended by the plaintiff. It must mean the place where the branch flows into some other body of water and loses its identity as a distinct stream, or where it cases to have a channel of its own. If that point is at its confluence with the run of Catskin, then that is its mouth and the first corner of the tract; but if it is at the edge of the swamp, or at any other place in the swamp, then the latter place is its mouth and the point of beginning. If the map was the only evidence in the case relating to this question we would say that the mouth of the branch is at the point designated on the map as "18," and that is where the branch joins (441) the run, as it appears from the map that the branch empties into the run. But there is some evidence tending to show that Catskin Swamp is low and flat and that the branch "spreads out" at or near the edge of the swamp, where its waters mingle with those of the swamp, so that it cannot be identified as a separate stream, and that the run or channel of the swamp is some distance from the place where the branch empties into the waters of the swamp. It should, therefore, have been left with the jury to find, under proper instructions of the court, where the mouth of this branch is, with directions that the place at which they boundaries of the tract. There seems to be no dispute as to the first two calls of the deed for this tract, but the plaintiff contends that the third call, which is "thence said (Old Field) branch to Catskin," should stop at the edge of the swamp, or, at least, that the matter should be left to *351 the jury so that they can determine what is meant by "Catskin" — that is, whether the edge or the run of the swamp was intended. The defendant insists that the call should go to the run; but if, as matter of law, the run is not called for, then the jury should decide as matter of fact where the end of this line should be. We cannot say that either the edge of the swamp or the run is the objective point, but it must be submitted to the jury to ascertain, upon the evidence and under the instructions of the court, where the end of the third line or the fourth corner of the tract is, and then a line should be run from this corner according to the call of the deed to the first station. It will be seen, therefore, that the true location of this tract is to be determined by the same general principle which was applied in the case of the 64-acre tract. When the call is at all ambiguous or uncertain it is always a question of fact for the jury to decide what was meant, and to fix the (442) boundaries according to what they may find from the evidence, under the law as given to them by the court, was the real intention of the parties to the deed.
In the trial below the court by its ruling prevented the defendant from developing its case. The defendant should have been permitted to put its deeds in evidence and to show adverse possession under them, if it could do so.
What we have said leads to the conclusion that the court erred in refusing to instruct the jury as asked to do in the defendant's second prayer, which refers to the tract north of Catskin, and the court should have given the instruction contained in the defendant's ninth prayer, in which the court was requested to submit the question as to the true location of the boundaries to the jury. It necessarily follows from this ruling that the court's instruction to the jury to answer the issues in favor of the plaintiff, if they believed the evidence, was erroneous.
We have carefully examined Peebles v. Graham,
In their briefs counsel for the respective parties, for the purpose of illustrating and pointing their argument, selected and referred to different deeds introduced by the defendant, the calls of which are somewhat unlike. It would unnecessarily lengthen this opinion if we should attempt to lay down the principles applicable to each deed under which the defendant claimed. The general principles we have stated, if properly applied, will, we think, be found sufficient to enable the jury, under the instructions of the court, to locate the boundaries described in each of said deeds. If the defendant at the next trial shows, and the jury find, that there has been adverse possession of any (443) *352
part of the defendant land which is covered by any one of the deeds upon which defendant relies, sufficient in law to bar the entry of the State at the time the grant issued to the plaintiff Rowe, this adverse possession under color of title will defeat the plaintiff's recovery as to that part of the land. Rowe v. Lumber Co.,
The defendant contended that the controversy as to the boundaries of the Casteen tract, which is north of the swamp, should not have been reopened, as it was a matter which had been fully adjudicated and determined by this Court in its former decision on the rehearing. Rowe v. LumberCo.,
It appeared that since this case was commenced L. P. Dosh, one of the plaintiffs, had died, and his devisee, M. V. Dosh, had been made a party to the action. The administrator of L. P. Dosh has not been made a party. Upon these facts defendant requested the court to charge that M. V. Dosh is not entitled to recover anything for her interest as devisee, as the trespass is alleged to have been committed before it was acquired. The court refused to give the instruction, and the defendant excepted. The administrator of L. P. Dosh should be made a party; otherwise, the plaintiff Rowe can only recover his share (445) of the damages. Winborne v. Lumber Co.,
The defendant's motion to dismiss because the administrator of L. P. Dosh had not been made a party, which was made the first time in this Court, cannot be granted here, and could not have been granted even if it had been made in the lower court, as it was not the remedy provided by the statute. Clark's Code (3 Ed.), sec. 188; Laws 1887, ch. 389; Wood v.Watson,
Because of the errors which we have pointed out, the judgment must be set aside and a new trial awarded.
New trial.
Cited: S. c.,
(446)
