June 1839
Where a grant calls for a certain course from one corner to another, vvith-out sayjng by a line of marked trees, and the corners are both established, the direct line from the one comerto the other is the boundary, although there may be a line of marked trees between the corners, but varying in some places from the direct line: but if, in the description, a line of marked trees be called for in addition to the course, the line of marked trees is then to he followed though variant from the course.
When a certain course is called for in a grant along a public road from one corner to another, and the corners are identifiedy-tbe 'public road is the boundary though varying from the course; and iflhere be two tracks of the ro'ad for part of the distance, it is a question for the jury to ascertain which track was the public road at the time of the grant.
This was an action of trespass ouare clausum pre-git, tried at Anson, on the last circuit, before his Honor Judge Pearson. The plaintiff alleged trespasses at two different places. As to the first, the evidence necessary to be stated was a grant to Hezekiah Hough, dated in 1790, and a regular deduction of title from the said Hough to the plaintiff.— The second call in the grant was from a pine corner N. 10° W. one hundred and fifty chains to a pine corner. Both these corner trees were identified and admitted. The defendants’ intestate claimed a tract of land adjoining the plaintiff’s on the East, for which he produced a grant to one Kirby, dated in 1792, and deduced a regular chain of title to himself. The third call in the grant to Kirby, was from a black jack in Hough’s line, then with his line S. 10° E. a certain number of chains to a pine, Hough’s corner, &c.— The plaintiff proved by one Hezekiah Hough, Junior, who was present when the survey was made upon which the grant to Hezekiah Hough, Senior, issued, that the surveyor marked line trees from the one pine comer to the other pine corner, and that the trees so marked were still standing. It was also proved that some of these line trees were blocked, and corresponded in age with the grant. . It was also in proof that the course called for in the grant would lead directly from the one pine comer to the other, leaving the line of ' marked trees a little to the East; that for one hundred and *229fifty or two hundred yards, the direct line pursuing the course, corresponded very nearly with the marked trees, after which the direct line left the marked line of trees, leaving the trees standing at different and varying distances from it; that the marked line thus formed a zigzag course for the greater part of the distance, until it approached the other corner, when it got back so as again to correspond with the direct line indicated by the course called for, and thus lead to the corner. The trespass, which consisted in cutting trees &c., was between these two lines. The plaintiff insisted that he had a right up to the line of marked trees, while the defendant contended that he had a right to go up to the direct line indicated by a straight course from corner to corner.
As to the second trespass, the plaintiff offered in evidence a grant to himself dated in 180U, which lapped over and covered a part of the defendant’s tract of land on the north. To present the question arising on this part of the case it is only necessary to give one call of the grant to Kirby, dated in 1792, under which the defendant claimed, to wit: the course from a black jack corner, on the side of the public road; then with the public road N. 80°, W. one hundred chains to a black jack corner on the side of said road in Hezekiah Hough’s line, then with his line &c. These two black jack corners were identified. The defendant proved that there was, at the date of his grant, and had been for some years before, a public road leading from one black jack corner to the other, that this road was kept up many years afterwards, and that although it had, for some years past, been discontinued, and a nearer road opened, yet the traces of the old road were still left, and could be easily followed; that in one place in going down a hill, the road divided and formed two tracks for some distance, when the two came together again. It was doubtful from the evidence, which of these tracks was the public road in 1792. A direct line from corner to corner left the road including both branches of it a small distance to the north. The line indicated by the course mentioned in the grant, starting at the first corner would also leave the road to the north, but would not strike he second corner, missing it by some thirty or forty yards, *230The trespass which consisted in cutting trees and the like was b^ween the direct line from corner to corner and the road, and also between the two branches of the road: The plaintiff insisted that the defendant’s title reached only to the direct line from corner to corner; while, on the other hand, the defendant insisted that he had aright to go with the road.
Upon the first .question, his Honor charged “ that where both corners were known and identified, and the grant did not call for a line of marked trees, the grant run in a straight line from corner to corner — the course mentioned in the ■grant, and the marked line trees being regarded only as means to find the corner; that this case was entirely differ■ent from the cases relied on by the plaintiff’s counsel, for in those cases, one corner being known, the object was to find the other which was unknown, and the line of marked trees being the most certain means of ascertaining the unknown corner, controlled the course when they happened to differ; but that when both corners were known, the.grant pursued a straight line from corner to corner, and did not turn about from tree to tree as they happened to be marked; that line ■trees, particularly ‘side line trees,’ as surveyors call them, were intended to indicate near where the line was; in‘the ■same way that a pointer indicates near where the corner stands. That where a grant called for a corner, and’ then along a line of marked trees to another corner, the grant would then pursue the line of marked trees, because1 they were then not simply a means to find the comer, but an essential part .of the boundary.”
Upon the second question, the jury were charged; “ that as the defendant’s title called from the first corner with the public road to the other corner, his grant pursued the road, and not a direct line from corner to corner, as the road was an essential part of the boundary. And that if the jury were satisfied that the road spoken of by the witnesses was the •public road called for in the defendant’s grant, he would be entitled to their verdict so far as the trespass between the direct line and the road was concerned: That as to the trespass between the two branches of the road, if the jury were satisfied from the evidence that the northern branch was the *231public road in 1792, and was the road called for in the defendant’s grant, they-would find for him; but if they not satisfied that the north branch was the public road at that time, then the defendant would be liable for the trespass between the two branches of the road.” A verdict was returned for the defendant, upon which he bad judgment, and the plaintiff appealed. •
No counsel appeared for the plaintiff in this Court.
Mendenhall for the defendant.
Daniel, Judge.
The law arising on both points in this' ’ cause, was, we think, correctly stated by the judge in his charge to the jury. The opinion of the Superior Court, and the reasons for it, as contained in the case, are adoptedby, this court as its opinion, and the judgment is affirmed.
Per Curiam. Judgment affirmed.