70 S.E. 284 | N.C. | 1911
This action was brought to recover damages for a trespass on land. While trespass is a personal and possessory action, if neither party has the actual possession at the time of an alleged unlawful entry, the law adjudges the possession to be in him who has the superior title. McCormickv. Monroe,
[EDITORS' NOTE: THE MAP IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
that the first line should be run from Leggett's corner on Welche's Creek or Gum Swamp to the "Morris line," and the second line should not be run according to the course given in the grant, but with the "Morris line" the prescribed distance, and the other lines should be run according to the calls of the grant to the beginning. The case, therefore, (235) turns upon the question whether the call for the "Morris line" should control the location of the second line of the Stubbs *185 patent. The calls in that grant are as follows: "Beginning at a pine on Welche's Creek or Gum Swamp at Luke Leggett's corner, running thence south 41 1/2 degrees west 12 3/5 chains; thence south 20 1/2 degrees west 18 1/4 chains, along Morris's line south 16 1/2 chains; thence south 10 1/2 degrees west 18 1/2 chains, south 15 1/2 west 11 1/4 chains," and thence with the remaining calls of the grant to the first station. There was no dispute as to the beginning corner. If the second line is run as the plaintiff contends it should be, that is, with the Morris (or Carkeet) line, the course will be north 67 1/2 west, instead of south 20 1/2 west, which is the call of the Stubbs grant, making a difference in the two courses of 92 degrees. It also appears from the official map annexed to the grant, that the lines therein indicated were run by the surveyors, who made the survey and map, as the defendant now contends they should be.
The general rule is that in the absence of calls for natural or artificial objects or monuments, a call for a known and established line of an adjoining tract of land will control another and conflicting call for course and distance, because such a call is deemed to be the more certain.Cherry v. Slade,
The court was of the opinion, and so charged the jury, that the second line of the Stubbs grant must be run according to course and distance, which should not be deflected or controlled by the call in the grant for the Morris line, that line being mentioned only in the third call. If the second line is thus run, the senior (or Stubbs) grant will cover the locusin quo, and the defendant had the title and, therefore, the constructive possession at the time of its actual entry upon the land. Having the right of possession and the right of property, its entry was not unlawful.
Under the instruction of the court, which we hold was correct, the verdict and judgment were properly rendered for the defendant.
No error.
Cited: Elliott v. R. R.,
(237)