Doe on Dem. of Gause v. Perkins, 47 N.C. 222, 2 Jones 222 (1855)

June 1855 · Supreme Court of North Carolina

47 N.C. 222, 2 Jones 222

DOE ON DEM. OF WILLIAM GAUSE vs. CHURCHILL PERKINS.

A marked lino of another tract, which can be established by its memorials when called for in a conveyance, must be run to, disregarding distance: but where such memorials cannot be established and there is no sufficient proof to establish it, the fact, that in the original survey, the surveyor ran to a given point near the plantation fence of the tract named, is no reason why course and distance shall be disregarded, and that point again recognised.

ActioN of ejectMent, tried before his Honor Judge Bailey, at the last Term of Brunswick Superior Court.

The controversy in this case turns upon the following description in a deed, dated 23rd of February, 1819, from James Cheers, to the lessor of the plaintiff, viz: “Beginning at a light-wood tree” (which is established at A in the diagram,) “ running North 2 degrees West 172 poles to a pine,” (established at B,) “thence West 300 poles to a stake ‘in Bogey’s branch,’” (established at 0,) “thence South across the swamp to the mouth of Bull-branch 175 poles to William Gause’s line to a stake; thence East 300 poles to the beginning.”

[diagram.]

The lessor of the plaintiff called one Thomas F. Gause, who stated that he was one of the chain-carriers when the original survey of the Cheers tract was made: William Gause was living on a tract of land near E: that there was a house upon the land surrounded by a field, which was fenced in, and that William Gause owned no other land in that neighborhood; that when the surveyor was making his survey, he ran from. G across the swamp to the mouth of Bull-branch D, then up Bull-branch, about a south course, to a point a little west of the field in which William Gause was then living, in aline with the fence which ran on the north side of the field at the edge of a pond, where he planted a stake, E. ITe further proved that he was with John Phelps, the surveyor, when he made the survey in this case, and pointed out to him where the fence, on the north side of the Gause field, stood at the time of the original survey, and they found there were some traces of the old fence, and where he placed a stake. On cross examination, he stated that there are not now, and were not then, any known or marked lines or corners on the tract on which William Gause lived in 1818.

John Phelps, the surveyor, was then introduced: he stated he made the survey in the case, and made the plat annexed : that, after running across the swamp to D, he ran to the point showed him by the witness Gause, where he said he had placed a stake, not far from a pond: that .the witness Gause pointed out where the old fence had been, and he saw some traces of it still remaining: he said that the point to which he ran, which is at E on the diagram, is on a line with the old fence. He further stated, that he saw no marked trees or corners of the tract where Wm. Gause lived; that the distance called for in the deed, from D, gave out 170 poles short of E, terminating about G ; that the course from that point to the beginning at A, is east, whereas the course from E to A is north of east.

His Honor charged the jury that, as the witness for the plaintiff could not point out the Wm. Gause line in locating the grant to Cheers, they- must stop at the point where the distance gave out, although a witness stated where the line was actually run at the time of the original survey, and where he planted,,a stake as a corner thereof. Plaintiff excepted.

Yerdict for the defendant. Judgment and appeal.

Slrange, for plaintiff.

No counsel for defendant.

Nash, C. J.

The controversy in this case, turns entirely upon the termination of the third line of the conveyance from Cheers to the plaintiff. The call in that deed for the third line, is “thence south, across the swamp to the mouth of Bull-branch, one hundred and seventy-five poles, to William Cause’s line.” The closing line is, then east three hundred poles to the beginning. The second line of the Cheers deed and Bull-branch, for the purposes of this case, are ascertained, and the question is, where is the terminus of the third line? — is it where the distance, called for in the deed, gives out, or is the line to be continued to the letter E in the diagram? The distance gives out where that line leaves Bull-branch, and to go to E extends it one hundred and seventy poles further than the call of the deed. The plaintiff insists he is entitled to go to E, because William Gause lived in a field designated in the plot, and had a fence around it.

It was in evidence, by the surveyor, that when he ran this third line, Thomas E. Gause, who was one of the chain-carriers when the Cheers tract was originally surveyed, pointed out the terminus at the letter E, and also the place where an old fence stood, enclosing the field where William Gause lived. The surveyor further testified that there was no marked line of William Gause to be found, either in running from the point where the distance gave out, or from the latter to E; nor was there any line marked from E to the beginning. He further stated that, in running from the point where the call of the deed gave out, the course to the beginning was due east as called for, but that, in running from E, the course to get home was north-east.

Upon the point, as to the terminus of the third line, his Honor instructed the jury “that, as the witnesses could not point out the William Gause line, in locating the grant to James Cheers, they must stop at the point at which the distance gave out, although the witness stated where the line was actually run at the time the original survey was made, and where the stake was planted.” In this opinion we concur.

Wery few subjects have occupied more of the time of ourCourts, or been more carefully examined than that of boundary. Connected with the possession of the most valuable portion of property, the establishment of fixed principles, whereby disputes concerning the ownership of land might be, in part, governed and controlled, became at an early day, in the settlement of the country, a matter of great importance. In the administration of justice on this subject, our Courts were compelled, in many instances, to depart from the rules of the common law, and to build up a system suited to the situation of the country. Among these rules or principles are the following : Natural objects, of a permanent kind, called for in a grant or deed, will control both course and distance, - v. Beatie, 1 Hayw. 376. Where a junior grant or deed calls for a line of an elder grant or deed, the line shall be extended to it, regardless of the distance or course, provided the lines be sufficiently established, Cherry v. Slade, 3 Murph. 82. But if they were not marked, then the call should be disregarded and the course and distance pursued, Carson v. Burnett, 1 Dev. & Bat. 516, Reed v. Shenck, 2 Dev. 415. The terminus of a line must be either the distance called for in the conveyance, or some permanent monument, which will endure for years, the establishment of which was cotemporaneous with the execution of the deed. A stake is'not such a monument, and evidence of its being made and fixed at the time the land was surveyed, is not admissible to control the course and distance, 3 Dev. 65, Shenck v. Reed. The distance called for in a deed, must govern, unless there be some other description, less liable to mistake, to govern it, Kissam v. Gaylord, Busbee 116.

These are some of the rules or principles governing questions of boundary. The deed from Gause to the plaintiff calls for no natural object as a boundary after passing Bull-branch; the third line, the terminus of which is the point in dispute, calls for a course and distance to Gause’s line to a stake. Here there is something which, if it existed, would control the course and distance, but it is not shown that that line ever existed. Thomas E. Gause, a chain-carrier, in locating and surveying the Cheers grant, states that the line was actually run from Bull-branch to the point designated in the diagram, and that at that time William Gause was living in the field where the stake was planted, but he does not say that a single tree was marked, and the surveyor states that he discovered no lines either on the line, after leaving Bull-branch, or in running from E to the beginning; he further states that he ran the line from Bull-branch to the spot, at which the other witness stated was the place where the stake was planted in the original survey. If that line had been marked, in the original survey, it would have controlled the course and distance, provided the line of Gause, which was called for as its terminus, could have been established : — but in the absence of any natural boundary, or marked line in the establishment of the Gause line,' there is nothing to control the course and distance. But there is another consideration, the call for the fourth, or home line is, from the termination of the third line, east to the beginning ; the surveyor states that running from the point where the distance gave out, to the beginning, answers to the call in the grant, while running from E the course is north-east. There is no evidence that William Gause owned any land above the east line.

There is no error, and the judgment is affirmed.

Per CuRiAM. Judgment affirmed.