Hartsfield v. Westbrook, 2 N.C. 297, 1 Hayw. 297 (1796)

March 1796 · North Carolina Superior Court

2 N.C. 297, 1 Hayw. 297

Hartsfield v. Westbrook.

One line of a boundary was from a poplar on a swamp, “ thence down the swamp to the beginning”: held, that the swamp, and not a straight line from the poplar to the beginning, is the boundary.

The patent called for a beginning at a tree, which stood (though not so expressed in the patent) near the swamp, thence in a rectangular course from the swamp, thence South degrees West, thence North to apiñe (which also stood near the swamp, but not said to be so in the patent) thence to the beginning, not taking any notice or making any mention of the swamp. The patentee conveyed part of this land to Eaves, who con veyed to Hartsfield, Eaves’s deed began at the beginning, corner of the patent, thence a rectangular course from the swamp, thence South, thence- North to the swamp to a poplar, thence down the swamp to the legin - ning. The trespass complained of, was on the opposite side, of the swamp from the poplar. It was within the land of the Plaintiff, if a direct line from one boundary to the other was the true one; but not within it if the swamp was the true boundary.

Per Curiam

The swamp is to be considered as the boundary — but that this judgment may not be hurried, you may move the matter at another day. Should the opinion of the court be altered in the mean time, they will then set aside the nonsuit now ordered. The Plaintiff was nonsuited — anda few days afterwards it moved fyy Gen. Davie, that this nonsuit should be set aside, saying he wished the opinion of the court upon this point, because another suit was depending in court upon the same point, between Hartsfield and Fuller, which would be disposed of immediately should the court be of opinion that the swamp was to be considered as the boundary.

Per curiam — A case similar to the present was decided at Edenton last term, between Foster and Sandifer — the expression there was, “thence along the river5” here it is, “ thence down the swamp to the beginning” — they are both of the same import, and the case of Foster and Sandifer, is therefore, tit to govern the present, and accordingly the swamp in the present case, is to be considered as the boundary. — Let the nonsuit remain, and the rule to show cause why it should not be set aside, discharged.— Then Gen. Davie dismissed the other suit of Hartsfield v. Fuller.

Note. — Vide Sandifer v. Foster, ante 237.