24 N.C. 311 | N.C. | 1842
This was an action of trespass quare clausum fregit, on the trial of *220 which it became necessary to ascertain the location of a patent granted to one Carson Brinson in 1745, as both the grants under which the plaintiff and defendant respectively claimed called for one of the lines and corners of that patent. The first and second corners of that patent were admitted. From the second corner the patent called for a certain course and distance "to a pine in the bottom of a savanna," which the defendant contended was at C., but which the plaintiff alleged was at G. The witnesses who were examined to this point stated that C. was about 50 or 60 yards from the savanna, but that G. was in the savanna and near one edge of it. Some of the witnesses stated that the land about C. might be called savanna land, though it had a growth of pines upon it, it being in other respects of the same character with the open savanna. One witness, an old man, testified that the open savannas frequently changed in some degree their location by growing up in timber on one edge, while they might encroach upon the adjoining pocosin on another; but he did not know that it was the fact in relation to the savanna in question. The defendant contended that the call on the Brinson patent for the savanna was too indefinite to be considered as a call for a natural boundary, and that, therefore, it must be controlled by the course and distance, which terminated at C., whereas neither the course nor distance pointed (312) to G., as the corner; and if the call was a natural boundary, it was a matter of construction for the court, and the jury should be instructed accordingly. The court instructed the jury what was the terminus of a call in a patent was a matter of law to be decided by the court; that where was such terminus was a matter of fact to be found by the jury; that a savanna was a natural boundary, which controlled the course and distance, if the jury could ascertain that it had an existence, and find where it was; that if, in the course of time, the savanna had changed its location in some degree by growing up in timber in one part and becoming open in another, that circumstance would not alter the original boundaries of the patent, and that if the evidence satisfied them that in 1745, when the patent was taken out, there was a savanna at C., and that was then made a corner, they should so find; but if from the testimony they believed the line was then extended to G., they should fix upon that as the corner, and in that event their verdict should be for the plaintiff; otherwise, for the defendant. A verdict was returned for the plaintiff, and a motion for a new trial on the ground of misdirection having been overruled, and judgment rendered for the plaintiff, the defendant appealed. Although a savanna may not be as well defined as some other natural objects, yet it cannot be seriously questioned that it is a *221 natural boundary, in the sense in which that term is used in the construction of deeds. It is a natural open meadow, not uncommon in the lower part of this State. It is not, indeed, always absolutely in the same state and extent. Yet from the constitution of the soil, or its humidity, or other natural quality, not well understood, there takes place in savanas but little change, and thus they may be considered nearly permanent, unless interfered with by the cultivator, and that seldom happens as yet, we believe. We think, therefore, that it was properly held that the line was to go to the savanna, notwithstanding the distance to the contrary; and that it could not stop at C., unless that was in the savanna. Whether it was or not was a point for the jury, and was left to (313) them.
The court further instructed the jury, "that should the evidence satisfy them that in 1745 it was savanna at C., and that was then made a corner,they should so find," that is, find for the defendant, who contended the corner was at C. according to the course and distance and the state of the savanna when the land was taken up. It is said that that instruction was erroneous because the circumstances just mentioned fix that to be the corner, whether the party actually made a corner there originally or not. There is certainly an inaccuracy in the language used, and for the reason assigned by the counsel; and, at first, we thought it might have misled the jury. But upon further consideration we think it sufficiently plain that it did not. It seems that each of the parties insisted on a particular point as the corner, and it does not appear, indeed, how it would affect the place of the trespass, if any other point besides C. and G. should be the corner. Nor is it material to the defendant that if C. was not in the savanna he was entitled to pursue his course beyond C. until he reached the savanna, provided the court, in summing up, gave him the benefit of the corner being supposed to be anywhere else he chose to place it, in case the plaintiff did not locate it at G. to the satisfaction of the jury. Such, however, was the course of the court on this trial. It would, indeed, have been more satisfactory if the evidence had been set out upon which course and distance were disregarded, and G., one point in the savanna, taken in preference to C., another point therein, and, indeed, to all other points therein; because then it could have been seen affirmatively that justice had been done. There might, for example, have been a marked line of the proper age, pointing to G., or evidence of its locality in "the bottom of the savanna," on which the jury might properly have proceeded. If there was no such proof, it is the fault of the defendant that he did not make this exception fuller; for, as we have often said, we can disturb a verdict only when error is made to appear. We must suppose there was some evidence on which it (314) might be left to the jury to say that G. was the corner actually *222 made, since no exception is taken to its having been so left without any evidence. Then, it is to be noticed in what terms the court submitted that question to the jury and informed them of the effect of their being of opinion that G. was or was not, in fact, the corner made for the Brinson patent. They are these: "But if, from the testimony, they believed the line was then extended to G., they should fix upon that as the corner; and inthat event their verdict should be for the plaintiff; otherwise, for thedefendant." Whatever uncertainty might have arisen upon the first part of the instruction, to the prejudice of the defendant, is thus taken entirely out of the way; for it was distinctly laid down to the jury that the plaintiff failed in his suit if he failed to establish G. as the corner made upon the original survey. It was not, therefore, material to the defendant to establish C., on his part; since he was declared to be entitled to the verdict if that or any other point, saving and excepting G. only, was the corner. We must, therefore, take it that G. was proved to be the corner; and that, for that reason, and not merely that the defendant did not show that the corner was made at C., the verdict was given for the plaintiff. Consequently, the judgment must be
PER CURIAM. Affirmed.
Cited: Waters v. Simmons,
(315)
