Slade v. Etheridge, 35 N.C. 353, 13 Ired. 353 (1852)

June 1852 · Supreme Court of North Carolina

35 N.C. 353, 13 Ired. 353

WILLIAM SLADE vs. JOSEPH H. ETHERIDGE.

In ascertaining the boundaries of a grant, -when a point is described, as being a given distance from a certain other point, a direct line is implied, unless there be something to rebut the implication.

The circumstance that both points are on the same river has no tendency, to destroy the implication.

Appeal from the Superior Court of Law of Martin County, at the Spring Term, 1852, his Honor Judge Dice: presiding.

This was an action oí trespass quare clausum fregit. The plaintiff claimed title under a patent to Slade, which patent was bounded on the North by the second line of a patent to one Taylor, under which the defendant claimed. The last mentioned patent calls to begin at a Gum on Roanoke river, half a mile below Quitsny. The gum could not not he found.

The plaintiff proved, that, many years since, there was a landing called Quitsny, which was on the Bertie side of the Roanoke river. He further proved, that persons, crossing the river at this landing, landed on the Martin side of the river, at a large oak, which stood nearly opposite to the landing, which place was also called Quitsny. He further proved, that Lewis Bond, an old man, now dead, and who was at one time Ihe owner of the land at the oak on the Martin side, told the witness, that the place where the oak stood was called Quitsny. It was also proved, that the oak has since been cut down, but the stump is still remaining. The defendant then proved, that a sycamore on the bank of the river was the termination of the third line of the Taylor patent, and the fourth corner of said patent; and he contended, that the stump aforesaid had not been satisfactorily proved to be at Quitsny landing, and prayed the Court.to instruct the. jury, that it was their duty to begin at the sycamore and reverse the lines of the Taylor patent, as the only means of ascertaining where the true lines of the Taylor patent were. The defendant also requested the Court to instruct the jury, that, supposing they found Quitsny to be at the stump before mentioned, it was their duty to run a direct line so as to strike the bank oí the river half a mile below Quitsny, and in that way to ascertain the beginning-corner of the Taylor patent.

Thp Court refused the instructions prayed by the defendant ; but charged tbe jury, that it was for them to decide, whether the plaintiff had laid before them sufficient evidence to satisfy them, that the stump aforesaid was at the place called Quitsny in the Taylor patent; and if it was proved, that the stump was on the margin or bank of the river— then, as the last call of the Taylor patent was from tbe sycamore down the river to the first station, it was their duty to follow the margin of the river from the stump half a mile down the river, in order to ascertain where the gum, the beginning corner of the Taylor patent, had stood.

Yerdict for the plaintiff. Rule for a new trial. Rule discharged. Judgment; and the defendant appealed to the Supreme Court.

Moore and Biggs for the plaintiff.

Winston, Jr. and Rodman for the defendant.

Pearson, J.

The case turned upon the location of the beginning corner of the grant to Taylor. The grant begins at a gnm on Roanoke river, half a mile below Quitsny : and the third call is for a sycamore on the bank of the river, thence-down the river to the beginning. It was proved, that-a black oak stump on the bank of the river was at a landing, and was the place called “ Quitsny.’’ The gum could not-be found.

The defendant’s counsel requested the Court to instruct the jury, that “it was their duty to run a direct line, so as to strike the-bank of the river half a mile below the stump, and in' ¡that way ascertain tbe location of the gum, or beginning corner.”

The Court refused so to charge, but instructed the jury, •“ that, as the last call of the Taylor grant was from the sycamore down the river to the first station, it was their duty to follow the margin of the river from the stump half a mile down the river, in order to ascertain where the beginning corner had stood.”

In this there is error. When a point is described as being a given distance from a certain other point, a direct line is implied, unless there be something to rebut the implication. We are not able to perceive how the fact, that the stump, in this case, stood-on the river, and the gum also stood on the river, a half a mile below, has any tendency to show, that a direct-course is not to be adopted. If one is travel-ling by water, and asks the distance to a certain place, also on the water, we are apt to tell him, according to the course of the stream. If he is travelling by land, we are apt to tell him the distance according to the course of the roads. But Surveyors and Mathematicians speak of distances according to straight lines, and are always so to be understood, unless there is something to show to the contrary.

His Honor was of opinion, that the last call, being from a sycamore on the river, down the river to the beginning, justified a departure from a direct line. That is true, in reference to the last or “ closing line’’ of the grant; but it has no bearing on the line from the stump to the gum. This latter line constitutes no part of the boundary, but is merely given to fix the location of the beginning corner; so the closing line has nothing to do with it.

Pfm Cüriasí. Judgment reversed.