Brooks v. Woodruff, 185 N.C. 288 (1923)

April 11, 1923 · Supreme Court of North Carolina

185 N.C. 288

JOHN BROOKS v. WILLIAM WOODRUFF.

(Filed 11 April, 1923.)

Boundaries — Grants—Location of Lands — Judge Finding Facts by Consent — Evidence—Appeal and Error.

The plaintiff claimed the loons m quo under the provisions of O. S., 7554, as vacant and unappropriated, and defendant filed his protest under those of 0. S., 7557, the question of ownership depending upon the location of the land within the boundaries of the senior grant. Upon an agreed case the trial judge found the facts: Sold,, the boundaries of the grant were matters of law, and where the boundaries were, those of fact, and the findings of fact by the court, under the terms of the agreement, when supported by evidence, are conclusive on appeal.

Appeal by plaintiff from Finley, J., at September Term, 1922, of Alleghany.

,This was a proceeding of protest under tbe entry laws, 0. S., 7557; and, from a judgment in favor of protestant, tbe enterer, or claimant, appealed.

T. G. Bowie for plaintiff.

JDoughton & Higgins for defendant.

Stacy, J.

Brooks made entry to certain lands, under C. S., 7554, alleging tbe same to be vacant or unappropriated. Woodruff filed bis protest, under C. S., 7557, claiming title to tbe land covered by tbe entry under a prior grant from tbe State. On tbe trial tbe rights of tbe parties were made to depend upon tbe true location of tbe lines and boundaries of Woodruff’s grant. Tbe case was beard on an agreed statement of facts, and bis Honor, by consent, acting as judge and jury, found tbat Woodruff’s grant called for tbe same land as tbat covered by tbe entry. Tbis was a mooted question of fact, and we see no reason for disturbing bis Honor’s finding in favor of protestant and against tbe claimant, as it is supported by tbe evidence.

“What are the terndm or boundaries of a grant or deed is a matter of law; where those boundaries or termini are is a matter of fact. It is the province of the court to declare the first, tbat of the jury to ascertain the second.” Henderson, J., in Tatem v. Paine, 11 N. C., 71. Here the court, by consent, taking the place of the jury, has found the facts against the claimant, and such finding is supported by competent evidence. the judgment, therefore, must be affirmed. Lumber Co. v. Bernhardt, 162 N. C., 460.

Affirmed.