Caldwell Land & Lumber Co. v. Triplett, 151 N.C. 409 (1909)

Dec. 8, 1909 · Supreme Court of North Carolina

151 N.C. 409

CALDWELL LAND AND LUMBER COMPANY v. J. A. TRIPLETT.

(Filed 8 December, 1909.)

1. Boundaries — Declarations—Evidence.

Declarations of deceased persons and common reputation, under certain circumstances are received bere as evidence on questions of private boundary, tbe limitations as to declarations being that they should have been made ante Mem motam; that the declarant is dead wlien tliey are offered and was disinterested when they were made; and as to both species of evidence it is required that the testimony should attach itself to some monument of boundary or natural object or be fortified by some evidence of occupation and acquiescence tending to give the land some fired and definite location.

2. Same — Presence of Declarant.

In the case of declarations it is not required that the declarant should be physically present at the point indicated if he describes the same so that it can be located with a reasonable degree of certainty. ,

3. Same — Trespass—Reputation—Declarations—Definiteness.

In an action of trespass on land it was admitted that the answer to an issue as to the beginning corner of á grant at a black gum tree would control in the locating the land in dispute. Evidence was offered by a witness of the declarations of .one L. which did not speak of the beginning corner in express words as a “gum,” but that it was “right at the intersection of” certain definite trails and a ridge, and the marked gum was subsequently found where he had stated. The witness had the calls of the tract of land read to declarant, and in the calls was “the character of the tree.” Held, evidence of declarations sufficiently definite to designate the tree as the beginning corner of the grant.

Appeal from Justice, J., May'Term, 1909, of Caldwell.

Civil action, for trespass on land and to restrain tbe cutting of timber.

Plaintiff claimed title under two grants, Nos. 900 and 907, to G. W. Folk, dated in 1874. These grants were introduced, and it was admitted that plaintiff had mesne conveyance of this title, and that same covered the land in dispute.

Defendant claimed title under two grants to Reuben Estes— one, dated in 1802, for 300 acres, and the second, dated in 1803, for 100 acres; and the question was in the location of these two grants, and this, in turn, depended on the correct location of the beginning corners, respectively. To determine these, questions, admitted to be controlling, issues were submitted and responded to by the jury, as follows:

1. “Is the black gum at the point designated on the map, 1, at the index, the beginning corner of the 300-acre grant, No. 3113, to Reuben Estes, in 1802?” Answer: “Yes.”

2. “Is the maple at the point designated on the map as No. 5, at the index, the beginning corner of the 100-acre grant, No. 3295, to Reuben Estes, in 1803?” Answer: “Yes.”

On the trial, J. M. Bernhardt, a witness for defendant, was allowed, over plaintiff’s objection, to state the declarations made to witness by one Luther Moore as to the placing of the beginning corner of the 300-acre grant, under which- defendant claimed part of the land, Luther Moore being dead at the time of tbe trial, and tbe declarations having been made to witness before controversy bad arisen, tbe declarant being sixty-five or seventy years of age at tbe time and not being in any way interested; the statement of tbe witness being as follows': “I bave béard'Lutber Moore say where this corner was. Tbe trail represented on this map runs from tbe black gum down to about tbe point marked ‘creek’ on tbe large map. Tbe path led from main Wilson Creek across by this black gum, and then from Eock House Creek, and then on to tbe Gragg prong at Madison Gragg’s bouse. The main Yancey Eidge is shown by these dots. I only know what Luther Moore said as to whether be ever did any surveying. I know that be was a hunter.”

Q. “What did be say to you about tbe beginning corner?” A. “He said it stood near tbe intersection of these two trails— one up Yancey Eidge, and tbe other leading from main Wilson’s Creek to Madison Gragg’s.” • "

Q. “What did be say it was a corner of ?” A. “Tbe 300-acre Estes grant.”

Q. “Did you afterwards find it?” A. “I found a gum tree there, marked as a corner.”

Q. “How far from tbe intersection of those trails ?” A. “Not over twenty feet; marked on tbe large map. At tbe time Moore was talking to me, be was at tbe Globe, five miles from this point. He told me tbe corner stood right at tbe intersection of those trails — Yancey Eidge and tbe one leading from Silas Coffey’s, on main Wilson’s Creek, across Eock House Creek to Madison Gragg’s. I think be said tbe beginning corner; I am certain be did. I don’t think be told me what sort of beginning corner it was. He didn’t say whether it was pine, black gum, oak or chestnut. .1 bad tbe calls of tbe piece of land. I bad it and read it to him. Tbe calls bad tbe character of tbe tree.”

W. O. Newland and Ay cock & Winston for plaintiff.

Jones. & Whisnant and 'Mark Squires for defendant.

Per Curiam :

Tbe declarations of deceased persons as evidence on questions of private boundary and general reputation on such an issue has been the subject of a number of recent decisions of this Court. Lumber Co. v. Branch, 150 N. C., 240; Bland v. Beasley, 140 N. C., 629; Bullard v. Hollingsworth. 140 N. C., 634; Hemphill v. Hemphill, 138 N. C., 504; Yow v. Hamilton, 136 N. C., 357; Shaffer v. Gaynor, 117 N. C., 15.

As to declarations of a single witness, it is required that tbe declarant be dead when they are offered, and they should bave been made before the controversy arose, and by a disinterested person; and, both as to declarations and general reputation, the evidence must not be indefinite and general in its nature, but, as said in Bland v. Beasley, supra, “It must attach itself to some monument of boundary or natural object, or be fortified by evidence of occupation and acquiescence tending to give tbe land some fixed and definite location.”

In Gaynor’s case, supra, tbe declaration was in reference to a. tree. In Hemphill’s case, supra, tbe general reputation was admitted tbat a divisional line ran along tbe top of a certain ridge, a natural object, otherwise described and defined in tbe testimony. Tbe objection chiefly urged to tbe testimony admitted in tbe present case was tbat tbe declarant was not physically present at tbe corner when tbe declarations were made, and that be did not sufficiently designate and describe tbe tree. But this first question has been expressly decided against appellant’s position in Westfelt v. Adams, 131 N. C., 379, citing Scoggins v. Dalrymple, 52 N. C., 46; and on tbe second, while tbe declarant did not speak of tbe beginning corner in express words as a gum, tbe tree designated as the beginning corner in tbe grant, be gave a very clear indication of its placing, tbe important question; “right at tbe intersection of those trails, Yancey Ridge and tbe one leading from Silas Coffey’s, on main "Wilson’s Creek, across Rock House Creek to Madison Gragg’s,” and the marked gum was found 'just where be bad stated. Even if it be conceded tbat tbe witness should name tbe tree designated in tbe grant, this, by fair intendment, was also done; thus, “He didn’t say whether it was a pine, black gum, oak or chestnut. I bad tbe calls of tbe piece of land. I bad it and read it to him.”

Tbe objection tbat there was no evidence as to tbe location of tbe 100-acre grant is without ’merit. There was evidence as to tbe location of tbe beginning corner called for in this grant, “A maple standing on the N. E. side of tbe ridge,” and there was testimony as to natural objects called for in tbe grant, which further tended to locate it.

¥e find no reversible error in tbe trial, and tbe judgment on tbe verdict is affirmed.

No error.