Smith v. Murphy, 1 N.C. 303, 1 Tay. 303 (1802)

July 1802 · North Carolina Superior Court

1 N.C. 303, 1 Tay. 303

Smith versus Murphy.

TRESPASS quare clausum fregit. The plaintiff claimed under a grant from the State, issued in 1798. The defendant, upon the plea of liberum tenementum, set up a title under prior grants, for two tracts of land, one of three hundred acres, the other of one hundred and forty. The situation and boundaries of the larger tract are described by the letters A, B, C, D ; those of the smaller, according to the courses and distances, are represented by the letters a, b, c, d. but the number of poles called for gives out at the letter d, though the line from c calls for a hickory standing in the larger tract. If the last line or the tract were drawn from d to the beginning, it would cross the river twice, and the patent then would comprehend but eighty acres ; whereas if the line from d were continued on, 63 poles beyond the distance called for, to the larger tract and thence to the beginning, then the smaller patent would include nearly 140 acres, the quantity for which it was issued. The defendant could not prove the beginning of the larger tract, but gave evidence of the corner trees C and D. The beginning of the small patent was well established, but no proof was given of the hickory called for in the large tract. The lines E F, F G, represent the land patented by the plaintiff.

If a well ascertained line of another tract be called for, and it be found in the course, the line calling for it should be extended there, though is over reaches the distance.

After argument by Haywood for the plaintiff and Harris for the defendant,

the cause was submitted to the jury under the following charge.

By

the Court.

Although the beginning of the large tract has not been established by direct proof, yet such evidence has been adduced of two of the corner trees as will probably be satisfactory with respect to the whole tract. If it should appear that this land was located according to the description of the plot, then I apprehend that the line of the smaller patent cd should be extended from d, where the distance gives out, to the line of the largest tract. Several circumstances conspire to shew that such was the land originally patented. I. The owner of the largest tract taking up the other and calling for the line of the first, demonstrates that it was not his intention to leave any vacant land between the two tracts. II. The line being drawn from where the distance gives out to the beginning, crosses the river twice, and forms an inconvenient tract with respect to the owner of the larger patent. III. The near approach to the quantity of land entered, which the lines contained if joined together, and the great defalcation which is made it they are separated. From all which, the consequence seems to be unavoidable that a mistake has been committed by the surveyor ; which should not however, be allowed to deprive the defendant of his land.

Verdict for defendant.

See Bustin versus Christie, p. 95.