Den on the demise of Pollock v. Heirs of Harris, 2 N.C. 291, 1 Hayw. 291 (1796)

March 1796 · North Carolina Superior Court

2 N.C. 291, 1 Hayw. 291

Den, on the demise of Pollock v. the Heirs of Zemiriah Harris.

When a natural boundary, and courses and distances, are all given in a deed, (he natural boundary will prevail in cases of a variance ; and in doubtful cases, a regard to this preference must always be observed.

Ejectment. The patent under which the Plaintiff claimed, was the oldest. It called for trees standing in a swamp at one place, in a branch at another, in a po-cosiu at another, for a pine standing in a marsh near a hill, thence to a pine in an Indian old field near the river Neuse, thence a coarse and distance across the river to the North-west side of the river, thence a course and distance to a particular corner. The line from the pine last mentioned, run according to the course and distance in the patent, crosses a part of the old field and river also. It also runs through an adjoining marsh in a very miry part of it, stopping where that line intersects the river; and running the next line according to the course and distance in the patent, it crosses the river in two places (the river there forming almost an island by the circuity of its course) and terminates on the South-east, instead of the North west side of the river. If that line is made to terminate in the petiinsnlated piece of land, and on the North-west side of the river, and the next line be run from thence according to the course and distance in the patent, it would not. cross the river as it ran ,at the date of the patent. The river from one part of this bent to the other, which that line would not cross, having been formed since by a canal cut for the purpose, and in that ’case the Plaintiff would be entitled to recover part of the land described in the declaration j but if the second line .from the pine is made to terminate on the North-West side of the river, immediately after crossing it, not regarding the distance in the patent, then the next lino run according to the course and distance in the patent from thence, crosses the river in two places, and in that case the Plaintiff is not entitled to recover: or ' if that line is continued until the distance called for in the patent is completed, the next line from thence crosses the river in two places, and in that case the Plaintiff is entitled to recover. The latter is the line contended for by the Plaintiff, the former that contended for by the Defendants. If the land however should be run out according to the courses and distances in the patent from the beginning, then the lines do not extend to the swamp, po-cosin and marsh, severally called for in the patent, and the land is very far within the lines that do extend to them— so far within them that the Plaintiff is not entitled to recover any thing. These courses and distance lines were distingushed from the others which were extended to the several natural boundaries mentioned in the patent, by being called the dotted lines.

Per curiam,

after argument, as to the- dotted lines— The dispute with respect to them, may be decided by laying down the rule with regard to boundaries: it is this, wherever the beginning is ascertained, and the lines from thence, are by the words of the patent to terminate at a natural boundary, as a swamp, branch, creek, river, mountain, bill, or the like, if either the course or distance mentioned in the patent will not extend the line to the natural boundary, the course or distance, or both, must be disregarded; and the line notwithstanding these, must be extended to (hat nutural boundary if the course will lead to it; but if the distance falls short, the line must be extended beyond the distance, till it arrives at the natural boundary. And in the present case, if the dotted line will not extend to or intersect the natural boundaries called for in the patent; and if on the contrary, the other lines will extend to them, the result in point of law is, that these latter are to he deemed the lines described in (be patent; and then there can be little doubt with regard to any of them, until’ we arrive at the pine in the marsh. As to the Hue leading from thence, it is remarkable that the counsel on both sides have admitted that there was no actual survey of the land before the patent issued ; hence follows an unreasonableness in supposing, that the line from thence was run through the marsh. It was of no value in those times, and the surveyor and chain-carriers would hardly have run through so miry a part of it, for the purpose of taking in so small a portion of it. If we suppose the course mistaken, which might easily be, and that the line run in fact along the edge of the marsh, and in that direction terminated on the river, it will still terminate in the old field, which may be conside'-ed as a natural bmin.-dary¿ and in this direction the distance will be completed without crossing the river, which the patent doth not call for, as it has done in other instances where the line does cross the river. That direction and termination is attended with this farther advantage, that the next line drawn from thence according to ithe course and distance in the. patent, crossing the old field longitudinally, crosses the river but once, as mentioned in the.pa-ten f, and cornpjefes the distance in the peninsula without crossing the river a second time 5 and then the termination of that line is on the North-west side of the river, as called for in the patent, and not on the North-east. It would be attended with this further.advantage, that the next line drawn from the termination last mentioned, according to the course and distance in the patent, issues fn»tn the peninsula, through the narrow neck of land that connects the peninsula with the adjoining land, where at the date of the patent there was not any canal, and will nor cross the river as it ran at the date of the patent.— "Whereas if it be drawrn from either of the other two points, it will cross the river at two places, although that circumstance is not mentioned in the patent. The circumstances upon which this supposition is founded, are all of them circumstances arising from the natural boundaries that are in this case, namely, the. marsh, the old field, the river crossed but once, the line terminating on the North-we.st. side, ami the river not crossed at all by the last line ; and as they are furbished by a consideration of the natural boundaries, they are competent to justify the jury in disregarding the course called for in the patent, of the line from the pine ; especially as the patent mentions natural boundaries in every other i.n-stance where the lines did intersect them, and as in the description of the last line, it has not mentioned crossing the river at all; whereas it must cross it in two places, if what either the Plaintiff or Defendant contends for, be true. According to die before mentioned supposition, it will cross at the canal, where at the time of this patent there was none 5 and so it will be accounted for, why the patent in describing this line,«has not mentioned the river, as it did with respect to the line next preceding j and in every oilier case where a natural boundary was touched. If this supposition be adopted, the Plaintiff is e,muled to recover a pari of what he contends for only.. The jury found the Defendant not guilty.

Note. — This verdict must have been founded upon a supposition, tha' tuelim in controversy was to be dra-" n from a termination of the line nest preceding, being at a point immediately after its crossing the river, and not at a point further on in the peninsula — from whence the last line being drawn by the course and distance in the patent, would have crossed the canal.

Note.— Vide Bradford v. Hill, and the note thereto, ante 22.