Hays v. Askew, 53 N.C. 226, 8 Jones 226 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 226, 8 Jones 226

WILLIAM HAYS v. JOHN O. ASKEW.

Whether the rule, applicable in questions of boundary, where an. (innavigable stream or a public highway is called for, that is, to run to the middle of the stream or road, is applicable to a private way — quere ?

Where the beginning corner of a deed is on a private avenue, and the other calls of the deed come back to the mouth of the avenue, and “ thence down the said avenue to the beginning,” “ reserving forever twenty feet for my avenue,” it was held that this reservation explained the meaning of the grantor to be to run. to the middle of the avenue, and thence down it in the middle to a point opposite the beginning, thonoe to the beginning.

This was an action of trespass quern cla/usum fregit, tried before Howard, J., at the last Pall Term of Hertford Superior Court.

The plaintiff introduced a deed from the defendant to him, containing the following, clause descriptive of the land conveyed, viz: “ Beginning at a small sweet gum on my avenue, thence along an old path to a pine, thence by a small black gum (fore and aft) to a small sweet-gum, a corner ; thence a southern course to a dead white-oak ; thence to a white oak; thence to a dead red-oak; thence to another dead red-oak; thence to a small black gum ; thence from black gum, a continued straight line to Lenton landing road; thence down said road to my avenue, leading to my dwelling-house ; here, I reserve the width of twenty feet for my avenue ; thence down said avenue to the sweet gum, the first station; still reserving forever the width of twenty feet for my avenue to house.”

A surveyor testified that the land was on the north side of the avenue; that the “ sweet gum, beginning corner,” was on the same side; that after running around the land and coming back to the avenue, if the line ran down the side of the avenue to the “ sweet gum, the beginning corner,” the deed did not cover the locus in quo ; but that if it went to the centre of the avenue, and then to the beginning corner, that it would include it.

The Court instructed the jury, that the proper construction of the deed was to run the line along the side of the avenue. In submission to this opinion, the plaintiff took a nonsuit and appealed.

Garrett, for the plaintiff.

Winston, Jr., for the defendant.

Battle, J.

When this case was before this Court on former occasions, it was taken for granted that the deed from the defendant to the plaintiff conveyed the soil of a part of the grantor’s avenue, reserving an easement thereon, and the only question then made, related to the form of the action and the amount of damages. Now, the question is, whether the deed conveys any part of the soil over which the defendant’s avenue extends, the defendant contending that the boundary of the land commences on, and the last line runs along the edge of the avenue, and that the land, conveyed, lies entirely outside of it. As it is a question of boundary, it is to be regretted that the land was not surveyed, showing, among other things, the width of the avenue before, and at the time of conveyance, and a plat made of it and sent up as a part of the case. We might thus have been enabled to understand more clearly the precise question in dispute, and might possibly have come to a different conclusion from what we have upon the merits of the case. The first call of the deed is the beginning “ at a small sweet gum on my avenue,” which, it is stated, stands at the edge of the avenue. After several calls, about which there is no dispute, the Teuton landing-road is called for, and the boundary is. “ thence down said road to my avenue, leading to my dwelling-house, (here I reserve twenty feet for my avenue) thence down said avenue to-the sweet gum, the first station ; still reserving forever the width of twenty feet, at least, for "my avenue, to my house.” In calling for the avenue, the plaintiff contends that the line runs to the middle of it, and thence along the middle, until it gets opposite the sweet gum, when it turns and goes straight to that. Eor this, his counsel cites 2 Smith’s Lead, cases, (p. 216 Am. Ed.) where it is said that a call, in a deed, for a highway, carries the line to the middle of the highway, in analogy to the well known rule, which extends a line usquead filum aquae, where an unnavigable river or other stream is called for. The defendant’s counsel admits the law to be as contended for by the plaintiff, when a highway or public road is called for, but denies its application to a call for a private way or avenue, but insists that as the beginning corner is a, tree, standing on the edge of the avenue, and the last line runs down the avenue, it must rnn along the edge or margin to the beginning. There would be much force in this argument, were it not repelled by the reservation, twice mentioned, of twenty feet for the avenue to the grantor’s house. This, we think, must be taken as explanatory of the grantor’s intention, that the next to the last line should go to the middle of the avenue, and thence down the middle, so- as to include-a part of it. This construction is confirmed by the fact, that the parties have always considered it heretofore as the true one. See S. C. 5 Jones 68, Y Jones 272.

Venire de novo.

Per Curiam,

Judgment reversed.