Den. on dem. of Corn v. McCrary, 48 N.C. 496, 3 Jones 496 (1856)

Aug. 1856 · Supreme Court of North Carolina

48 N.C. 496, 3 Jones 496

Den. on dem. of D. D. CORN vs. CHARITY McCRARY.

The lino of another tract of land called for, controls course and distance, and it makes no difference whether such line be marked or unmarked.

Action of ejectment, tried before his Honor, Judge Manly, at the Eall Term, 1855, of Henderson Superior Court.

The title of the plaintiff’s lessor consisted of a grant from the State for the land conrprised within the linos 23, 28, 7, 21, and thence hack to 23, in the annexed diagram, and showed the defendant in possession of the locus in quo.

Tlie defendant showed title to the land contained in the figures 1, 2, 3, 4, 5, 6, and thence hack to 1, by a grant to one Jacob Shipman for three hundred acres, dated in 1794. The defendant also showed title to a tract of land of one hundred acres, lying south of the last'mentioned tract, granted to Edward Shipman, in the year 1802, which contains the following clauses in the description of it: “joining the lands he now lives on”—“beginning in said Shipman’s line of the land where he now lives,” which the defendant says, in the diagram, is about 6 or 28, (these lying close together,) “ and runs south one hundred poles to a black oak at a rock below a cliff,” (which is alleged to be at 8,) “ then west one hundred and fifty poles to a stake (10,) then north sixty-seven degrees west 115 poles to a stake,” (claimed by the defendant to be at 5, but by the plaintiff at 11,) “ thence with the said Shipman’s lino north eighty-two degrees east two hundred and ninety

poles to the beginning.” There was no evidence of any marks or other indicia between the corners 5 and 6, but this was taken and considered in the case to be established as the true line of the three hundred acre tract. The call of this line in that grant is “ N. 82 degrees E. 300 poles to the beginning.

The defendant contended for a beginning in the line 5, 6, and then to run round to 8, 9, 10, then the course and distance called for to 11, thence the nearest distance to the line 5, 6, then along it to the beginning. This running would include the locus in quo in the defendant’s title, and acquit her of the alledgod tresspass. The Court was of opinion that this was the proper way of locating that grant according to its calls, and instructed the jury to that effect. Plaintiff excepted.

Yerdict for defendant. Judgment and appeal.

JV. W. Woodfin, for plaintiff.

Baxter, for defendant.

Pearson, J.

The only point presented by the case is in reference to the location of the last line of a grant td Edward Shipman for one hundred acres, dated 1802. The location of the grant to Jacob Shipman for three hundred acres, dated 1194, is assumed to be as represented on the plot; and it is assumed that the south line of that grant, from the chestnut corner near 5, to 6, is the Shipman line called for in the grant of 1802. That line was not marked, and was a “ mathematical Une between established corners.” The third line of a grant of 1802, from a stake at 10, on the plot calls, “ thence N. 61 deg. "W". 145 p. to a stakeand the 4th line calls, “thence with said Shvpma/rds lime North 82 degrees East 290 poles to the beginning.” The distance of the third line gives out at 11 on the plot, without reaching the line 5, 6 ; and running from 11 to the beginning, the grant of 1802 does not include the locus in quo. The defendant contended that the third line should be extended to the line 5, 6, and run with that line and go to the beginning, which would include the locus in quo. But the plaintiff insisted that as the line 5, 6, was not marked, and was a mere mathematical line, it could not control the course and distance of the third lino of the grant of 1802. His Honor was of opinion with the defendant, and in that opinion we concur.

The line of another tract which is called for, controls course and distance, being considered the more certain description, and it makes no difference whether it is a marked or an unmarked, or mathematical line, (as it is termed in the case,) provided it be the line which is called for. In deciding whether it be the line called for, the fact of its being a marked line, or an unmarked line, may have an important bearing; but in our case it is assumed to be the line called for, which disposes of the question.

There is no doubt that it was properly assumed to be the line called for, although it was unmarked, from the facts that are set out in the grant of 1802, i. e. : Edward Shipman then lived on the three hundred acre grant, and it is plainly to be inferred that he owned it; and in taking his grant in 1802, it is reasonable to suppose that his intention was to have the new tract extend up to that on which he then lived, and not to leave a small strip of vacant land between his two tracts, to be the subject of future controversy. But ho did not choose to leave this as a matter of supposition merely; as a part of the description of the new tract, it is set out in the grant, that “ it adjoms the land he noto lives on.” This makes it certain that the line of the land he then lived on was the line called for in his grant of 1802; and whether that line is properly located at 5, 6, or should be at 11, Y, or any intermediate points, it is a fixed fact that the line of the grant of 1802 extends to it, so as to leave no vacant land between them. From abundance of caution, he not only sets out the above general description of the new tract, and the particular description of his last line, “ tlience with said Shipman’s line North 82 degrees East 290 poles to the beginning,” (which is the corner of the line of the three hundred acre tract, and also the distance, except ten poles, between the chestnut and 5); but the grant sets out, also, that its beginning corner is “ on said Shipman?s line of the land where he now lives.”

O.ur attention was called to Carson v. Burnett. 1 Dev. and Pat. 558, where it is held, that an unmarked line of another tract did not control the course and distance of a line of the grant then under consideration. That decision recognises the principle that a line of another tract, which is called for, controls course and distance, whether it be a marked or an unmarked line; and is put expressly on the ground that the line by which it was attempted to control course and distance was not, fact, the line called for, for these, among other reasons: it was unmarked, and not otherwise known or established ; as, by a possession claiming up to it; it was the line of some other person; it -was a great distance off; to get to it, the land of the third person -would have to be crossed; it would be necessary to add another line to the grant; it would take in a much greater quantity of land, and no good reason could be assigned why the grantee should have intended so to extend his lines. In all these particulars, except that of the line being unmarked, our case differs. In Kissam v. Gaylord, Busb. R. 116, there was no call for the line of another tract, and the attempt was to control distance by the general words, “ the upper parts of lots 151 and 155,” &c., which, for the reasons there given, was not conceded. In Spruill v. Davenport, Ibid. 131, the call was for Thomas Mackey’s line; and it was attempted to control course and distance by ex* tending the line to William Mackey’s line; and the question of fact was, whether William Mackey’s line was the line called for; and it is held to be error to submit that question to the jury; because, in that case, there was no evidence to support such a conclusion.

Note the diversity! Thus all the cases are reconciled.

Pels Curiam.

Judgment affirmed.