PlaiNtiiws’ Appeal.
Decision here turns upon the answers to these two questions: First. Where the county surveyor, instead of actually surveying the lines and boundaries of an entry, adopts a known natural object as the beginning corner, and merely plats on paper the lines and boundaries, designating in part courses and distances to stakes, are the stake corners to be located by measuring the distance by surface measure or by horizontal measure ? The answer is “by horizontal measure.”
The statute in effect at the date of entry No. 2335, 5 September, 1853, in question here, provides that every county surveyor, upon receiving the copy of the entry and order of survey for any claim of lands, shall, as soon as may be, lay off and survey the same, agreeably to this act, and that no surveys shall be made without chain carriers, who shall be sworn to measure justly and truly, and to deliver a true account thereof to the-surveyor, and who shall actually measure the land surveyed. Revised Statutes of North Carolina, 1836-7, chapter 42, section 14. See, also, Revised Code of North Carolina, 1854, chapter 42, section 12; C. S., sections 7565-7567; Redmond v. Mullenax, 113 N. C., 505, 18 S. E., 708; *45 Higdon v. Rice, 119 N. C., 623, 26 S. E., 256; Lumber Co. v. Hutton, 152 N. C., 531, 68 S. E., 2. But the statute does not prescribe the method to be used in measuring the lines in surveying an entry.
It is presumed, until the contrary is shown, that a public officer, as is a county surveyor (R. S., chapter 42, sections 4-6, Constitution of North Carolina, Art. VII, sec. 1), acts in compliance with his legal duty, and that his proceedings are regular. Clifton v. Wynne, 80 N. C., 145; Neal v. Nelson, 117 N. C., 393, 23 S. E., 428; Gregg v. Comrs., 162 N. C., 479, 78 S. E., 301. Thus, where a county surveyor purports to act under an order of survey of an entry on which a grant has issued, it may be presumed that he acted in accordance with his legal duty to lay off and survey the lands covered thereby.
This, however, is a rebuttable presumption.
Furthermore, while there is authority in this State, Duncan v. Hall, 117 N. C., 443, 23 S. E., 362, and Stack v. Pepper, 119 N. C., 434, 25 S. E., 961, to the effect that there is a presumption, founded on custom sanctioned by judicial opinion, that surveyors used surface measure in the early surveys of entries on which grants were issued, particularly in the mountain sections, there is no factual basis for such presumption where it appears, as here, that no survey was made. The custom of a surveyor to use surface measure in surveying entries has no probative value in cases where no actual survey was made. In such event the rule of correct measurement must be applied. The authorities agree that horizontal measure is the correct and accurate method of measurement in the survey of land. 8 Am. Jur., 794, Boundaries, sec. 67; Gilmer v. Young, 122 N. C., 806, 29 S. E., 830; McEwen v. Den, 24 Howard, U. S., 242, 16 L. Ed., 672. Manifestly, a line platted on the plane of paper is horizontal.
The second question: "Where, in an action to recover land and for trespass thereon by cutting timber, defendant in answer filed denies plaintiffs’ title thereto, and files cross action averring that plaintiffs have trespassed on his land, to which plaintiffs in reply disclaim title to any of defendant’s land, properly located, and deny trespass thereon, and it is found that plaintiffs’ title is valid, and that defendant, though under bona fide belief that he was within his own lines, cut timber on a small portion of plaintiffs’ land, and that plaintiffs have not cut any timber on defendant’s land, are plaintiffs as a matter of law liable for any of the costs of the action? The answer is “No.” C. S., 1241; Moore v. Angel, 116 N. C., 843, 21 S. E., 699; Vanderbilt v. Johnson, 141 N. C., 370, 54 S. E., 298; Bryan v. Hodges, 151 N. C., 413, 66 S. E., 345; Swain v. Clemmons, 175 N. C., 240, 95 S. E., 489; In re Hurley, 185 N. C., 422, 117 S. E., 545.
The statute, C. S., 1241, provides that costs shall be allowed of course to the plaintiff, upon a recovery, in an action for the recovery of real *46property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial. This does not include compensation of referees. C. S., 1244 (6).
On the other hand it is provided that, unless plaintiff be entitled to costs in actions mentioned in C. S., 1241, costs shall be allowed as of course to the defendant.
In the present case the defendant by the denial in his answer put the title of the plaintiffs in issue. The issue is found in favor of plaintiffs. This entitles them to costs. It makes no difference, as was stated in Swain v. Clemmons, supra, that the defendant upon the trial below admitted plaintiffs’ title to the lands covered by the grants under which they claim, and only controverted the location of some of the lines of those grants. The admission came too late for the purpose of saving the costs.
Other assignments of plaintiffs, given due consideration, fail to affect the decision here reached, that is, that plaintiffs are entitled to judgment (1) declaring them to be the owners and entitled to possession of the land covered by entry No. 2335, Grant 2684, on location shown in alternate finding of fact of the referee in applying horizontal measure, except the portion indicated in judgment rendered below; (2) striking out award of damages to defendant for value of timber cut by plaintiffs within the lines of said entry so located, and (3) for costs, exclusive of compensation to referee. ,
In these respects the judgment below against plaintiffs is
Reversed.
DekeNdaNt’s Appeal.
Upon the facts appearing in the record on this appeal, the challenge of defendant to that part of judgment below pertaining to costs is without merit. However, judgment will be corrected to conform to decision on plaintiffs’ appeal.
Other assignments are untenable.
Affirmed.