Waters & Mizell v. Simmons, 52 N.C. 541, 7 Jones 541 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 541, 7 Jones 541

WATERS & MIZELL v. DENNIS SIMMONS.

Where one of the calls of a grant was for the head of a certain creek, it was Held competent to show, by parol evidence, where the head of this creek was.

This was an action of trespass, tried before Saunders, J., at Spring Term, 1860, of Martin Superior Court.

The plaintiffs’ claimed title under a grant issued to Edmundson Edwards Smithwick, on the 12th of October, 1779, for four hundred acres of land, lying in Martin county, beginning at a water-oak, standing on the east side of Spellar’s creek, running thence down the gut, the various courses, one hundred and seventy-five poles to a water-oak, Edward Smith-wick’s corner; thence north 10 deg. east 485 poles to the head of Spellar’s creek; thence down the various courses of the creek to the beginning. One George W. Ward, a witness for defendant, had lived six miles from the place; had known Spellar’ sereek since 1845 ; known it well, and had gotten timber on it; was asked by the defendant if he knew where the head of Spellar’s creek was. This question was objected to by plaintiffs, and ruled out by the Court, on the ground, that the answer of witness would be the expression of his opinion, and, therefore, incompetent. Defendant excepted.

The plaintiff's then enquired of witness, on cross-examination, if there was any point which a man @f judgment and observation could locate as the head of the creek. Witness answered there was. On resuming the examination, defendant asked the witness to state where that point was. Plaintiff's objected to the question. Objection sustained by the Court. Defendant excepted.

Defendant offered Eli Spruill, a surveyor by profession, of experience and observation among the swamp lands and creeks of Roanoke river, who had known Spellar’s creek for ten years, and asked his opinion as to the location of the head of Spellar’s creek. Plaintiffs objected to the question. Objection sustained by the Court. Defendant excepted.

Yerdict for plaintiff". Judgment. Appeal by defendant.

Hodman, Winston, Jr., and Jenl&hns, for plaintiffs.

Donned, for the defendant.

Battle, J.

It has been so often said by this Court'that what is the terminus of a call in a grant, is a matter of law, but that where it is to befov/nd is a matter of fact, that the proposition does not need the aid of any citation of authority for its support.

In the case now before us, one of the calls of the grant under which the defendant claimed, is “ the head of Spellar’s creek,” which is certainly as much a natural object, as was the “ bottom of a savanna,” which was iecognised as such in Stapleford v. Brinson, 2 Ired. Rep. 311. It was the duty of the Court then, to instruct the jury that, as a construction of law, “the head of Spellar’s creek” was one of the corners of the defendant’s tract of land, and it was the province of the jury to ascertain from the testimony, which might be given on the subject, wh&re that corner was situated. How was the location of'that natural object to be proved? We know of no method, and are unable to conceit of any other than that of the testimony of witnesses, who profess to be able to point it out and identify it. If the testimony of such witnesses is to be rejected upon the ground that it is the expression of a mere opinion, it seems to us that the identification of no natural object whatever, can be established by proof. In every case, what the witnesses may be prepared to state with respect to the identity of the object, will be obnoxious to the objection that it is only his opinion. If a river, creek, marsh, swash, swamp, savanna, mountain, cove or ridge be called for in a deed or grant, it cannot be identified by the instrument itself, but its location must in the very nature of things be pointed out by parol proof; that is by the testimony of witnesses who profess to know, and to be able to state where it is. The identity of some objects of these kinds, may be easily established, as in the case of Neuse river or the Pilot mountain, while in the case of small streams, or inconsiderable hills, the proof will be more difficult and uncertain, and sometimes the proof may fail altogether. But surely the difficulty of the proof can •be no reason why the testimony should be rejected as incompetent. In the case, now under consideration, one of the witnesses stated that there was a point which a man of judgment and observation could locate as the head of Spellar’s creek. Is there any principle of evidence to prevent his telling where it was, more than there was to prevent the identification of the small streams mentioned in the case of Hurley v. Morgan, 1 Dev. and Bat. Rep. 425 ? In that case, no person thought of objecting to the testimony of the witnesses, who were introduced to show that this or that stream' was the one meant in the call of the deed or grant, and yet the witnesses could not have given more than what was, in a certain sense, their opinions. In that sense, opinion is used in contradistinction to certain knowledge, but in law it cannot be applied to impressions made upon the senses of the witnesses, and which he is therefore permitted to testify to as facts. "When a person is called upon to identify a certain man, tree, river, or mountain, whom or which he has seen, his testimony will be as to a fact¡ though he may be mistakeh®is to some very remarkable fact; mistakes have been known to occur in questions of that kind. The liability to mistake shows clearly that testimony, if taken in a sense opposed to certain knowledge, is only opinion, but in law, as it is opposed to the inference of the witness from facts deposed by others, or by himself, the testimony is not called the opinion, but the own proper knowledge of the witness, and as such, has always been deemed competent. See 1 Green, on Ev. sec. 440.

Our conclusion is, that the witness, in the present case, was competent to state where the head of Spellar’s creek was, the plaintiff having the right to call other witnesses to prove that he was mistaken either by showing that it was elsewhere, or that the point where it was, when the grant was issued, could not be identified. As the judgment must be reversed, and a venire de novo awarded on account of the error in the rejection of this testimony, it is unnecessary for us to decide whether the surveyor, Mr. Spruill, was competent to testify as an expert in ascertaining the location of the head of Spellar’s creek.

Per Curiam,

Judgment reversed, and a vmi/re de novo..