169 N.C. 80 | N.C. | 1915
Lead Opinion
PLAINTIFFS’ APPEAL.
after stating the case: The right of the plaintiffs to recover depends upon the true location of the first line of Grant No. 3290, that is, as to land described in the grant which is not covered by any of the inside patents. The question as to the effect of the latter upon the rights and interests of the parties is presented by the defendant’s appeal, and need not be considered here.
We are satisfied that we cannot adopt tbe plaintiff’s view, unless we bold that what was done by Sawyer and Kelly, when they made tbe survey in 1871, amounted to a- practical location of the first line within tbe rule laid down in Cherry v. Slade, 7 N. C., 82, that where it can be proved that there was a line actually run by tbe surveyor, which was marked and a comer made, tbe party claiming under tbe patent or deed shall bold accordingly, notwithstanding a mistaken description of tbe land in tbe patent or deed. ■ But tbe insuperable obstacle to tbe application of this rule is that the line must have been “marked and a corner made,” and it must also appear that this was done for tbe purpose of making it a line of tbe tract of land or a call in tbe deed, for it is said in Safret v. Hartman, 30 N. C., 185, after quoting from Cherry v. Slade, as above: “This rule presupposes that tbe patent or deed is made in pursuance of tbe survey, and that tbe line was marked and tbe corner that was made in making tbe survey was adopted and acted upon in making tbe patent or deed, and therefore permits such line and comer to control tbe patent or deed, although they are not called for and do not make a part of it. Parol evidence being let in for tbe purpose of controlling tbe patent or deed by establishing a line and comer not called for, as a matter of course, it is also let in for tbe purpose of showing that such line and corner were not adopted and acted on in making tbe patent or deed, because tbe rule presupposes this to be tbe fact.” It may also be added at this place that tbe rule was adopted, against tbe strong but ineffectual protest of tbe judges long since expressed^ for tbe sole purpose of executing tbe intention of tbe parties to tbe grant, and not to defeat it, and it was under tbe stress of some ‘hard ease,” where a sense of justice prevailed over tbe long established and safe rule forbidding a written instrument to be contradicted or varied by parol evidence, that tbe rule was brought into being. But conceding fully its existence, and that it is too firmly imbedded in tbe law of boundary to be now disturbed, we are admonished that it should be administered with caution and not carried beyond its well defined limits. Judge Pearson once said that tbe rule was “a violation of principle” and should not be extended. Safret v. Hartman, supra. We may well say in this case, what was so well said in Elliott v. Jefferson, 133 N. C., 207, that- tbe error of tbe plaintiff lies in a misapprehension of tbe application of the rule, that in case of a discrepancy a marked line controls the calls in tbe deed as to course and distance. This rule never applies unless the marked line is so connected with tbe deed, either by intrinsic or extrinsic evidence, as to create a presumption as to the intent of tbe grantor. Tbe mere running and marking of a line can never' convey tbe title to land, nor can it take the
So we see that the very foundation of the rule is the presumed intention of the parties to the grant, and the only excuse for it, as it is opposed to the general principle, is that it enables us to ascertain what the intention was in respect of the boundary.
It may be well here to reproduce some of the comments of this Court upon the rule, and its application, as what has been thus said is most pertinent to the facts of this case, as found by the able and learned referee and judge. The question as to the extent of the rule and the manner of its application was presented in the oft-cited case of Reed v. Schenck, 13 N. C., 416, where Chief Justice Henderson, with his usual clearness and acumen, thus refers to the rule: “For many years we have in all cases, I believe, except one, adhered to the description contained in the deed, and it is much to be. lamented that we do not altogether. The ease to which I allude is where the deed describes the land by course and distance only, and old maUis are found corresponding in age, as well as can be ascertained, with the- date of the deed, and so nearly corresponding with the courses and distances that they may well be supposed to have been made for its boundaries, the marks shall be taken as the
When we look at this case in the light of the foregoing authorities, it is manifest that the findings of the referee and judge withdraw the case from the operation of the rule as to the effect of a line being run and marked at the time the grant was made, as they distinctly find, and as clearly and emphatically as language can express such a finding, that JB. L. Sawyer and his surveyor, M. L. Kelly, when they made the survey in 1871 and ran along Deep Gap or Forester Ridge, had no intention of marking the line A-B as a line of the tract of land to be thereafter described in the Grant No. 3290. To use the language of the judge: “In respect of the survey made in 1871, for Grant No. 3290, on the B. L. Sawyer entries, the court finds that said survey began at the chestnut oak at ‘A’ and was carried to the point ‘B’ at Thunderhead, the same being the head of Defeat Ridge, retracing <the survey theretofore made in 1867, for the purposes heretofore stated. . . . The court finds that B. L. Sawyer was present upon this survey, and that the intention of Sawyer and the surveyor, upon said survey, was to establish the chestnut oak at A, a corner in the Bryson survey, as the beginning point in said survey, and that the western line of said survey should coincide with the eastern line of the survey of 1867, and that the northwest comer of said last (first) mentioned surveyed should be identical with the northeast corner of the Bryson survey of 1867.” It is then found as a fact that the
But plaintiffs contend that, while tbe call is for tbe Bryson line, it also extends from A “1,800 poles north to tbe Tennessee line at tbe bead of Defeat Ridge, and they insist that tbe line should go to that place, notwithstanding it is also said that it must begin and run with Bryson’s line and corner with Bryson’s northeast corner; but we do not
It was held in White v. Luning, 93 U. S., 514 (23 L. Ed., 938):
“1. As a general rule, monuments, natural or artificial, referred to in a deed control its construction, rather than courses and distances; but this rule is not inflexible; it yields whenever, taking all the particulars of the deed together, it would be absurd to apply it.
“2. If monuments are inconsistent with the calls for other monuments, and it is apparent from all the other particulars in the deed that they were inadvertently inserted, they will be rejected.
“3. Other things being equal, boundaries prevail over courses; but where the corners and distances inclose the identical land in dispute, it would be wrong to let two false boundaries stand, in order to defeat a conveyance.”
See, also, 1 Jones on R. P., secs. 382, 383, 384; 2 Devlin on Deeds, 1405, 1406; Noonan v. Lee, 2 Black (U. S.), 504 (17 L. Ed., 279); Shipp v. Miller, 2 Wheat., 316; Davis v. Rainsford, 17 Mass., 207; Thatcher v. Howland, 2 Metc., 41; Parks v. Loomis, 6 Gray, 472; Hamilton v. Foster, 45 Me., 40; Evans v. Greene, 21 Mo., 481; Bass v. Mitchell, 22 Texas, 285; Bagley v. Morrill, 46 Vt., 99; Atkinson v. Cummins, 9 How. (U. S.), 485; Browning v. Atkinson, 37 Texas, 633; Barclay v. Howell, 6 Peters (U. S.), 511.
In Mayo v. Blount, 23 N. C., 283, it was said to be “a sound rule of construction that a perfect description, which fully ascertains the corpus, is not to be defeated by the addition of a further and false description.” Cherry v. Slade, 7 N. C., at p. 96, Henderson, J.; Proctor v. Porter, 15 N. C., 307; Shaffer v. Ham, 111 N. C., 1, at p. 11; Shultz v. Young, 25 N. C., 287.
We find it stated in plaintiff’s brief that “When a deed sufficiently identifies land by its known boundaries or other means, and then super-adds, unnecessarily, to the description, such further description, though inaccurate, will not vitiate the previous and perfect description.” citing Simpson v. King, 36 N. C., 11; Mortgage Co. v. Long, 113 N. C., 126. This is because of the maxim, Falsa demonstrate non nocet. If the line should be run from A to D and then extended to the head of Defeat Ridge on the Tennessee line, so as to satisfy both calls (Clark v. Wag
There are several facts which tend to show clearly what property was intended to be described:
1. There is no reference in tbe grant to tbe Deep Gap or Forester Ridge, but tbe call is for a course due north to tbe Tennessee line, and this course is deflected, not to coincide with Deep Gap or Forester Ridge, but with tbe Bryson line, beginning with it, running with it, and “cornering” with it at its northeast corner, where tbe maple is. We must, therefore, adopt tbe latter as tbe line, or, at least, as a part of tbe line. Mizzell v. Simmons, 79 N. C., 187; Cansler v. Fite, 50 N. C., 424.
2. If tbe call is run with tbe Bryson line, and .stopped at tbe Bryson northeast comer, tbe other calls of tbe grant fit in with it; whereas if run as plaintiffs contend it should be, there are marked discrepancies.
■ 3. The Bryson line was marked, when tbe first or Siler survey was made, at both of its ends, and has for its northeast comer a maple, which identifies it with certainty.
4. There are subsequent calls in tbe Bryson survey for physical monuments just as certain and as reliable as Defeat Ridge, and they would not be reached without greatly lengthening lines, if tbe line is carried to Defeat Ridge. One of them is “700 poles to a beech, where the Locust Ridge reaches the Tennessee line.”
It will be conceded, we presume, that the mere understanding of the parties, without more, as to the location of Bryson’s line and northeast comer, cannot control the call. Hough v. Howe, 22 N. C., 228; Johnson v. Farlow, 33 N. C., 190; Literary Fund v. Clark, 31 N. C., 63; Wynne v. Alexander, 29 N. C., 237; Sasser v. Herring, 14 N. C., 340; Land Co. v. Erwin, 150 N. C., 41; Miller v. Bryan, 86 N. C., 167; Ingram v. Colson, 14 N. C., 520; Patton v. Alexander, 52 N. C., 603. The call is not from the chestnut oak (at A) to Defeat Ridge (at B), but a very different one, and if you go to Defeat Ridge at all, it must be by way of the Bryson line, and importance must be attached to the fact that it also calls for Bryson’s corner as the end of the line. The Bryson line, at the time, had been well established, having one corner at the
There are many exceptions to evidence in the case, but we think they can be so classified as to present but few questions for our consideration.
First. The testimony of the witnesses M. L. Kelly, P. 0. Sawyer, and Joseph M. Greer, and any other of the same kind, as to the declarations of B. L. Sawyer concerning the Bryson line, was properly limited by the court to what was actually done on the Kelly survey. The declarations of B. L. Sawyer as to the location of the Bryson line were incompetent, because he was not shown to be disinterested at the time they were made, and, on the contrary, it appears that he was interested at the time of the alleged declarations. Morgan v. Purnell, 11 N. C., 97; Sasser v. Herring, 14 N. C., 340; Hedrick v. Gobble, 63 N. C., 48; Caldwell v. Neely, 81 N. C., 114; Shaffer v. Gaynor, 117 N. C., 15; Yow v. Hamilton, 336 N. C., 357; Hemphill v. Hemphill, 138 N. C., 504; Hill v. Dalton, 140 N. C., 9; Lumber Co. v. Branch, 150 N. C., 240. The declarations of a grantor are not competent in favor of one claiming under him. Sasser v. Herring, supra. We need hot say whether the evidence is sufficient to show the declarations were ante litem mo-lam. It may be said that where the declarant has parted with his interest, what he has afterwards said about lines and boundaries cannot be used against those claiming under him to disparage their title. The same principle applies to the testimony of the witness A. C. Hoffman.
Second. The testimony as to the contents of the deposition of Bent Cook was properly excluded, as the witnesses were not able to give the substance thereof (Wright v. Stone, 49 N. C., 516; Whitemire v. Heath, 155 N, C., 304), and, besides, the deposition itself was not competent, as it had not been opened and passed upon, when it was destroyed, and never has been restored for that. purpose. Revisal, sec. 1652. It may be added that the testimony of Bent Cook as to declarations of Bryson was incompetent, as they were made after Bryson had disposed of his interest, and would disparage those claiming under him. 16 Cyc., 979. The testimony of T. T. Jenkins and T. J. Calhoun was properly excluded, and is governed by what we have already said in regard to the other excluded evidence. Besides, it does not clearly appear when the alleged declarations were made.
Third. The testimony of "William Walker as to line trees was not sufficiently definite as to kind of marks or their age, and in other respects was very indefinite. Even if there was any error, it was not sufficiently harmful for a reversal.
Fourth. Testimony as to the acts and declarations of Kope Elias was properly rejected. The relation between George W. Swepson and Elias, as client and attorney, appears to have been severed at the time of the
Fifth. The copy of the grant to George S. Walker, No. 138, taken from the registry, was properly admitted in evidence. By Revisal, sec. 988, it is provided that the registry of a deed, or duly certified copy thereof, shall be evidence in any court of the State, without accounting for the nonproduction of the original, and by sections. 1588, 1599, it is further provided that the court may, “upon affidavit suggesting some material variance from the original in such registry, or upon other sufficient grounds,” by rule or order require the production of the original of such deed, in which case the same shall be produced, or its absence duly accounted for according to the course and practice of the court. In this case, upon affidavit, Judge Peebles ordered that defendants allow plaintiffs to inspect the original grant, No. 138, and the plat and certificate of survey thereto attached, or show to the satisfaction of the court that they had made diligent effort to find them and failed, and on failure to produce the original grant, that they procure and use 'a certified copy of the same from the office of the Secretary of State. The latter was offered in evidence, and the court found that defendants had never had the originals in their possession or under their control, and that they had made a bona, fide effort to produce the original papers by doing the things and making the inquiries and search detailed in the finding. Thereupon the court overruled the exception to the admission of the copies.
We concur with his Honor that rfeasonable search had been made for the missing papers, and that the order of Judge Peebles had, at least, been substantially complied with. It was fairly exhaustive as to sources of information and probable places of deposit, and to have required more would have rendered it practically impossible to have complied with the order. There is really no tangible or reliable proof that there is any variance between the originals and the copies — none upon which a finding to that effect should legally be made. It is merely suggestion, conjecture, or supposition; but even if there had been some proof to that effect, the defendants satisfied the court that they had made a diligent effort to comply with the order, as they were required by its terms to do. Justice Puffin said, in Love v. Harbin, 87 N. C., at p. 254: “A main purpose intended to be accomplished by registration is the perpetuation of the instrument, and of the memorial of its probate and order of registration, and it will not do to hold that this intention of the statute may in every case be defeated by a notice to produce the original. Under the operation of such a rule it would be next to impossible to establish any title depending upon very ancient deeds, as they are rarely preserved so
Sixth. As to tbe testimony of Mr. Davidson in regard to proceedings in Wyman v. Taylor, we do not see bow it could be competent, if relevant to tbe issue in tbis case, to sbow tbat tbe court refused certain instructions in tbat case. It was re’s inter alios acta. Tbe court submitted tbe evidence for tbe purpose of showing tbe litem motam, as tbe record states.
Seventh. Tbe description in a junior grant may not be evidence of tbe location of lines or boundaries of a senior grant (Sasser v. Herring, supra; Hill v. Dalton, 136 N. C., 339) ; but it was tbe survey of Siler tbat fixed tbe Bryson line, and tbis was made prior to tbe date of tbe senior grant, No. 3290. . Tbis is quite a different question from tbe one decided in tbe cases cited. Tbe court properly admitted tbe map and certificate of survey to corroborate Siler.
Eighth. If there is any defect in tbe defendant’s chain of title, it does not concern tbe plaintiffs in tbis appeal, as they must recover upon the strength of tbeir own title, and not upon tbe weakness of tbeir adversary’s. They cannot recover by showing merely tbat defendants bad no title, even if tbis be true. ,
Ninth. Tbe referee was not bound to find a fact simply because there may have been some evidence of it, as be bad tbe right to weigh tbe same, and therefore be could consider tbe evidence of reputation as to tbe Bry-son line in connection witb tbe other evidence in tbe case, and was not compelled to find in accordance witb tbe reputation. He considers tbe whole evidence, and not merely a part of it; and tbis applies to- other exceptions based upon bis failure to find certain facts.
Tenth. The testimony of Joseph M. Greer, as to certain facts told him about tbe Bryson northeast corner at Defeat Ridge, was properly excluded, as be said “it seemed to be agreed by all of said persons”; but just who it was tbat called bis attention to it be would not say positively, because be did not recollect every person present. Tbis was entirely too indefinite. He did not, and could not, say who it was, nor did be state what was said, so tbat tbe court could judge of tbe quality of tbe testimony, but be was only able to state tbat “it seemed to be agreed by them.” Tbe witness must be able to give the substance of what was said and by whom, and tbe impression made on him will not answer tbe purpose. Tbis was held in Grant v. Mitchell, 156 N. C., 15, where, at p. 18, it is said: “Tbe secondary witness may give tbe substance, but not tbe mere effect, of tbe former testimony. To allow him to state tbe latter only would be to permit him to decide upon tbe effect of tbe testimony, instead of submitting it to tbe jury, to whom it properly belongs,”
There are a few more exceptions, but they are fully covered, we think, by what we have said in regard to the others, and require no further discussion. It may be said generally, and in conclusion, that no reference is made in Grant No. 3290 to Deep Gap or Forester Ridge as a line of the grant, and this is made more significant by the fact it is referred to only for the purpose of describing the beginning comer at the chestnut oak (A on map), and the next call is “north with Col. T. D. Bryson’s line,” and so forth, and not “north with the Deep Gap or Forester Ridge, Col. Bryson’s line,” as we would expect if the ridge controlled the call. The referee and judge find that it was not the intention to make the ridge one of the lines, or Defeat Ridge one of the corners, but the sole intention was to start at the chestnut oak and go to the sugar tree or maple at the head of Big Chestnut Ridge. It is found as a fact that in the survey of 1871, for Grant No. 3290, the line was measured along Deep Gap or Forester Ridge and carried to Thunderhead, it being the head of Defeat Ridge, in order to retrace the .survey of 1867, for the purpose heretofore stated, which was triangulation, the object being to locate the line from A to D, or from the first corner to the sugar maple, and to establish, at the latter place, the Bryson northeast comer. If a line had been run along Deep Gap, it could not be adopted as a line of the survey unless it was so intended to be, and it is found by both referee and judge that there was no such intention. The line from A to D was marked for some distance at either end, and cuts or hacks made on the chestnut tree at the place of beginning, and, at the time, indicating its direction. Besides, to fix the line at A-D will harmonize with the other calls of the Bryson' tract of land. All these things being considered— and others could be added — make it safer and more certain, as a guide to the intention of the parties, that the call should be controlled by the Bryson line as thus located, from A to D, than by the line A-B, which is not even north, and has no such indicia of a line as we find on the other. Again we say, physical monuments will have the preference in the calls, unless there is some more definite and certain call that clearly indicates the intention of the parties. There is no hard and fast rule of the law that is permitted to have the effect of defeating the clearly expressed will of the parties.
It must be borne in mind that we are dealing with a referee’s report, in which the facts were found and the findings afterwards confirmed by the judge, and this renders many of the cases cited by the plaintiff inapplicable. It is found, for instance, that the line from A to B was not run and marked, nor was it intended to be the first line of the Kelly survey, but the line A-D was intended to- be the first line, and, further!, that the line A-B, by Forester’s Deep Gap Ridge, was run, though not
Tbe record and tbe briefs are voluminous, tbe record containing 805 and tbe briefs 342 printed pages, and there were a large number of exceptions, running into tbe hundreds. Some of tbe questions are highly important and very delicate in certain of their phases. Tbe case has been strenuously contested, with great ability and research, and tbe Court has bestowed upon it most careful study and reflection. We have concluded that we but decide it upon its true legal merits when we bold that no error was committed at tbe bearing in this tbe plaintiff’s appeal.
No error.
, DEFENDANT’S APPEAL.
In tbe defendant’s appeal it is found, and so adjudged by tbe Court, that there is no error in tbe proceedings or judgment.
No error.
Dissenting Opinion
dissenting: I feel compelled to differ from tbe conclusions reached by the majority of the Court in this ease, and I will state my reasons as briefly as possible.
This is an action brought to recover a triangular tract of land delineated on the map as beginning at A, running to B, thence to D, and back to A. The plaintiff’s appeal involves the proper location of the first line of Grant No. 3290. The beginning corner of this grant is admitted by all parties to this action to be correctly located, and is shown on the court map at the letter A. The description of Grant 3290 may be analyzed as follows:
1. A tract of land containing 10,000 acres.
2. Lying in Macon County, Section No.-, District No.-.
3. Being part of the lands lately acquired, etc.
4. Bounded as follows, viz.:
5. On the waters of Hazelnut Creek.
6. Beginning at a chestnut oak on a trail leading from the mouth of Sugar Fork Creek to the Deep Gap.
7. Beginning and running with Col. T. D. Bryson’s line.
8. Eighteen hundred poles north to the Tennessee line at the head of Defeat Ridge.
9. Cornering with Bryson’s northeast corner.
10. Thence east 700 poles to a beech, where the Locust Eidge reaches the Tennessee line, etc.
It is admitted that the chestnut oak at A is'the beginning corner of this grant. I am of opinion (1) that the first line of Grant 3290 begins at A and runs to B on the map as a conclusion of law wholly irrespective of whether there ever has been or is now a “Bryson’s line,” and regardless of where it was located or alleged to have been located. In other words, the existence and location of this line is entirely immaterial for the purpose of establishing the first line of Grant 3290. The admitted facts show that this grant was located by starting at A and running to B, .this being the identical line actually run and marked at the time the eu tries were made.
(2) Assuming that the Bryson line is material, it appears to be undisputed that at the time of the survey in 1871 and the issuance of Grant 3290 thereon in 1872, the line from A to B was reputed to be the Bryson line, even though that repute was incorrect, and the surveyor located the first line of Grant 3290 under the belief that he was running with the true Bryson line, and he acted upon that belief, although it may have been erroneous.
The referee finds “that Defeat Eidge is located as plaintiff claims, being the ridge going up between the prongs of Little Eiver, in Tennes
Tbe Court finds that in making the survey in 1871 of tbe B. L. Sawyer entries, upon which Grant No. 3290 issued, in 1872 M. L. Kelly, tbe county surveyor, witb bis crew, surveyed from tbe said point “A” up tbe Deep Gap or Forester Ridge to tbe top of tbe Smoky Mountain at “B” at tbe bead of Defeat Ridge, and at tbe said point “B” made and marked a corner on a tree of tbe survey be was them making and upon which Grant No. 3290 issued. Tbe said tree was marked as a corner by M. L. Kelly in 1871, having been previously marked as a corner of tbe Bryson survey in 1867.
Tbe call for 1800 poles north to tbe Tennessee State line at tbe bead of Defeat Ridge is, in my opinion, controlling. There are two well defined objects that are unmistakable; one is tbe State line that divides North Carolina and Tennessee, and tbe other is Defeat Ridge. This ridge, as shown by tbe evidence, and not controverted, is one of tbe most prominent natural objects in tbe whole of that great range of tbe Smoky Mountains, and because of. its prominence has been long and well known to tbe citizens and inhabitants of both States of Tennessee and North Carolina, as well as to tbe United States surveys and to geographers. It would be difficult to find a better defined and located natural object, or one better known in all that country. Tbe location of this right where it joins tbe Smoky Mountains and its relation to tbe State line was overwhelmingly established by tbe evidence, and tbe court found tbe fact to be that it was located at “B.’
It was also admitted that tbe dividing line between tbe States of Tennessee and North Carolina passed along tbe crest of tbe Smoky Mountains. So that we have here a remarkable conjunction, in fact, of both tbe descriptions mentioned in tbe surveyor’s certificate of bis survey, and tbe grant issued thereon, viz., “the Tennessee line and Defeat Ridge.”
These facts being practically admitted or indisputably ascertained, under tbe repeated and well settled decisions of this Court, it follows, as tbe legal result, that tbe first line of Grant 3290 begins at “A” and runs to “B.” As I read tbe eases, this rule of law may be regarded as an ancient one in this State, and so well settled that it can hardly be seriously questioned.
Among the many cases cited in tbe elaborate and learned brief of tbe plaintiff’s counsel, we find tbe following to be especially in point, where tbe rule is most instructively applied to facts very similar to those in
When a deed sufficiently identifies a thing by its known name, or other means, and then superadds, unnecessarily, to the description, such further description, though inaccurate, will not vitiate the previous and perfect description. Simpson v. King, 36 N. C., 11; Mortgage Co. v. Long, 113 N. C., 126; Proctor v. Pool, 15 N. C., 373.
The .head of Defeat Eidge is a natural object so commanding in its character that it answers the description fully, and is sufficient of itself to locate the second comer, regardless of whether the line runs with Bryson’s line or not. The unnecessary and false description will be disregarded- and the line run to this controlling natural monument.
In Ehringhaus v. Cartright, 30 N. C., 42, it is said: "Many of the rules respecting boundaries are examples of preferring one part of a description, turning out to be true, to another part, turning out to be untrue. The case of Proctor v. Pool, 4 Dev., 370, is an instance of the application of the rule to a general description of the thing devised, the Court holding that the effect of the true description was not to be weakened by a further and unnecessary false description.” Smith v. Low, 24 N. C., 460.
In Miller v. Cherry, 56 N. C., 29, it is said: “Our decision is made under the rule that where more than one description is given, and there is a discrepancy, that description will be adhered to as to which there is the least likelihood that a mistake would be committed, and that be rejected in regard to which mistakes are more apt to be made. This is a rule of frequent application. If a tract of land be described by natural objects, or corner trees, and also by course and distance, and there turns out to be a discrepancy, the latter description is rejected.”
In Addington v. Jones, 52 N. C., 584, the Court said: “This rule, in respect to questions of boundary, presupposes that the description which is to control, and be put in the place of course and distance, has of itself sufficient certainty to locate the land, supposing the course and distance which it controls and contradicts to be stricken out of the grant.”
In Stafford v. King, 94 Am. Dec., 308, it is laid down that the general rules in respect to locating land are: (1) By natural objects, such as rivers, mountains, lakes, creeks; (2) artificial marks, such as marked trees and lines; (3) course and distajo.ce.
In this case Chief Justice Marshall is quoted as having said that “The most material and most certain call shall control those which are less material and less certain.” In this case it is laid down as a prime rule
In Doe v. Payne, 11 N. C., 71, it is said that “When the natural boundary is unique it has properties peculiar to itself.” A more distinctive, commanding, and controlling object could scarcely be thought of than the well known head of a great mountain ridge.
In Carson v. Burnett, 18 N. C., 558, it is said: “The object in all boundary questions is to find some certain evidence of what particular land was surveyed, or was intended to be conveyed. . . . When the call is for the line of another tract, it has also been held that course and distance may yield to it. But it is, obviously, not so decisive as the call for a natural boundary
In Waters v. Simmons, 52 N. C., 543, the Court stated: “One of the calls of the grant ... is, ‘The'head of Spellar’s Creek,’ which is certainly a natural object,” etc. “It was the duty of the court, then, to instruct the jury that, as a construction of law, the head of ‘Spellar’s Creek’ was one of the corners of the defendant’s tract of land,” etc. This is precisely in point in the case at bar. The call is to the State line at the head of Defeat Ridge. Defeat Ridge is a “natural object.” Its head is at the Tennessee line and it was the duty of the judge to declare that it was one of the corners of the grant (No. 3290) to W. L. Love.
The defendants insist that the way to go to “B” from the admitted beginning at “A” is to run from “A” to “D,” the head of Big Chestnut Ridge, and the defendants’ alleged northeast comer; thence westerly along the top of the mountain to “B,” a distance of 3 or 4 miles, and then run back in an easterly direction over precisely the same line and same distance to “D” and then resume the survey of the lines of G-rant 3290 along the mountain until they turn southwardly to the beginning.
The referee so concluded, and his judgment was affirmed by the court below. In view of the well settled principles of law set forth in the cases that we have cited, I see neither reason in nor authority for such ruling.
The defendant, admitting that the Bryson line was actually run as claimed by the plaintiff, undertakes to explain it by saying that the straight line from “A” to “D,” intended as a Bryson line, was not actually run and marked from “A” to “D” because the line would run through a country badly infested with rattlesnakes, and, therefore, they ran from “A” to “B” and by triangulation platted the true Bryson line from “A” to “D.”
This explanation may or may not be true, but it cannot have the effect of changing the controlling call for Defeat Ridge. It is but added pro.of that the Bryson line was actually run -where the plaintiff claims it was, and that is consistent with the call from the chestnut oak to Defeat Ridge.
I am of opinion that upon the admitted facts the plaintiff is entitled to judgment for the tract of land bounded and described in Grant 3290, beginning at chestnut oak “A” and running to “B” at Defeat Eidge,