Uwarra Mining Co. v. Candor Mines Co., 166 N.C. 229 (1914)

May 20, 1914 · Supreme Court of North Carolina

166 N.C. 229

UWARRA MINING COMPANY v. CANDOR MINES COMPANY.

(Filed 20 May, 1914.)

Deeds and Conveyances — Disputed Lines — Evidence of Location.

In passing upon the report of a referee to whom was referred an action involving title to adjoining lands of the parties litigant, there was evidence that the line called for in the plaintiff’s deed and that in the defendant’s deed were identical, and the finding of the trial judge, that the line between the parties should be varied to meet these descriptions according to the location testified by a witness, is held to be without error.

Civil actioe, tried at April Term, 1914, of MONTGOMERY, Harding, J., presiding, upon tbe report of a referee and tbe exceptions thereto.

Tbe court made tbe findings of fact embodied in tbe following judgment:

1. That tbe beginning point in tbe land of tbe plaintiff is at a hickory, red oak and white oak pointers, in tbe line of J. C. Mosser & Co., and running thence north 27 east 441 feet to a stake, center of road, Parson’s line, Spanish oak and black-jack pointers; thence south 28% degrees east witb road and Parson’s line 300 feet to stake in road; thence south 53 east with road and Parson’s line 450 feet to stake in road; thence south 59 east witb road and Parson’s line 825 feet to rock, beginning corner of Parson’s tract, and tbe corner of J. C. Mosser & Co.

That the last call in the land described above as set out in the deed is thence north 71 % west with line of J. C. Mosser & Go., I,246 feet, to the beginning, containing 5 acres, more or less.

2. That there is sufficient evidence to fix the last line in the deed to the plaintiff, other than north 71% west with'line of J. C. Mosser & Co.

3. That the evidence of P. E. Barber as to the following question and answer is competent: “What is the true direction from that rock corner to the fore and aft tree?” Answer: “North 73 degrees and 47 minutes west.”

The defendant in apt time objected to the competency of the foregoing question and answer. The objection overruled, and the defendant excepts.

4. That the true boundary line between the plaintiff and defendant is a straight line running from the rock referred to as the northeast corner of the defendant’s land and the southeast comer of the plaintiff’s land to the beginning, referred to in the first finding of fact as the hickory, red oak and white oak pointers, on the line of J. C. Mosser & Co.

5. That the true course of said line is north 73 degrees and 47 minutes west.

6. That the evidence of the reputation of the location of the J. 0. Mosser & Co. line and the Dempsey Pittman line is competent, and the defendant objects in apt time. Objection overruled, and defendant excepts.

The court adopts the conclusions of law of J. A. Spence, referee, and affirms the same as the judgment of this court. To the foregoing findings of fact and conclusions of law the defendant in apt time excepts.

From the foregoing findings of fact and conclusions of law it is, therefore, ordered, adjudged, and decreed that the plaintiff is the owner of the land described in the complaint hereinbefore set out, as described therein, except as to the last line, and that the last line in said description runs as the true line from the rock at the northeast corner of defendant’s land and the southeast corner of the plaintiff’s land, north 73 degrees and 47 minutes west to tbe hickory, red oak and white oak pointers, in the line of J. 0. Mosser & Co., referred to in the deed to the plaintiff as the beginning corner. W. F. HaediNG,

Judge Presiding.

The defendant excepted and appealed.

Charles A. Armstrong, U. L. Spence, H. Grainger Gaither for plaintiff.

Jerome & Price for defendant.

Pee CtjeiaM.

We think that there is abundant evidence in this case identifying the Mosser line, referred to in the plaintiff’s deeds, with the Dempsey Pittman line, referred to in the defendant’s deeds. The evidence also sustains the finding of fact that the true location and direction of that line is “73 degrees 47 minutes west.

The line in the plaintiff’s deed, which adjoins the’ defendant’s land, is the last call, viz.: “A rock, beginning corner of Parsons’ tract and corner of J. C. Mosser & Co.; thence north 71% west with the line of J. C. Mosser & Co. 1,246 feet to the beginning.”

The corresponding call and line in the defendant’s deed reads as follows: “From Dempsey Pittman corner, pine stump, three pine pointers, thence with his line north 76 west 77 poles to a stake in his own line he purchased of L. Simmons.”

Under the evidence, therefore, we think his Honor was correct in holding that the true location of the dividing line is with the Mosser or Dempsey Pittman line, and that the course must be slightly varied so as to run that line.

The judgment of the Superior Court is

Affirmed.