West v. Shaw, 67 N.C. 483 (1872)

June 1872 · Supreme Court of North Carolina

67 N.C. 483

JACOB WEST vs. TORQUIL SHAW.

1. Where the main,_question-in dispute was-.whcth.er the- tthifd^GOTaeF'ftf the defendant’s land stopped at.L or “proceeded on to 3;” held, that it was competent for the plaintiff, with a view of fixing the third corner, to offer in evidence a deed to-.defendant.of later date than the one under which he-olaimed in the suit, one'of the..-eal-lstherein being from a point indicated- on theodiagram as E, “ thence-south .00 degrees east, 0:65 chains to a stake and, pointers,’’ “ his (the defendant’s) “ own corner;” it being-established -in -connection .therewith, that the course of this call was towards,-!,, and the distance falling short only 05 link?; and held further, that the evidence was admissible on two grounds:

(1) As tending to show a recognition-by the defendant of the dividing line between him and the plaintiff, to wit, from D. to L, and as such, should be,considered by thejury, upon the question of the location-of the defendant’s third corner at L.

--■(2) As evidence tending to,'-confirm other evidence offered by plaintiff of the declarations of the defendant, to the effect that his bargainor bad marked the third corner at L.

2. It is competent for one party to a suit, involving a question of- boundary, to show that,another party to such suit pointed out ascertain tree as his comer, if 'the spot described by such witness, is by another witness, identified as the disputed corner.

8.-:In questions of boundary, it is competent to prove,by surveyors, as experts, that the marks on trees in a certain line are apparently of a certain age.

4. Where the phraseology of a deed, under which one of .the parties to such action claims the land, leaves it uncertain whether a pond is embraced by it, or the line ran near to it, but -so as not to cover it, an instruction prayed: “that the land of the defendant should be so located as to include within its boundaries the, .(said) pond,” was properly, refused.

5. Where, in such an action, the defendant’-s deed under which, he claims the loans in quo, called for 153£ aeres, an 'instruction(iprayed'“tbat as 158i acres of the land” (the whole tract embracing originally ,the land covered by defendant’s deed, conveyed-.by one HenryiElliott to Smith Elliott) “was reserved by Henry .Elliott.in,Ms deed to Smith¿& Elliott, as before that time sold and conyeyedvto the defendant, that defendant’s land should be so located as-to secure to him that¡quantity of land;” held to be properly refused, it appearing that the defendant had received all the benefit of such fact that lie was entitled to, by its being left to the jury as a circumstance to be considered by them on the general question ot boundary involved in the cause.

6. Where a call in the defendant’s deed was “ thence south 26J- degrees east 45 chains to a stake and pointers,” which was admitted to begin at 2 on the diagram, and by running course and distance to extend to 3, but was insisted by the plaintiff stopped at L, and there was evidence to show the existence of pointers at L, marked when the deed was made; held, “that .at the time of making'the deed, (defendant’s) 19th July, 1855, the second line” (beginning at 2) “ extended'from figure 2 to the figure 3, that being the point where the distance gave out," was properly responded to by an instruction, as follows:

The corner at 2 being an admitted’ corner of the Torquil Shaw (defendant) 153J acres, that after reaching 2 they should follow the course called for, admitted to he along the marked line leading from 2, and they should also run the distance called for in the deed, 45 chains to 3, where the distance gives out, unless before reaching 3 the distance was controlled by a corner established at the making ot the deed, and indicated by some natural object as trees marked as pointers; that if from the evidence submitted to the jury, they were satisfied that such corner existed at L, as contended for by the plaintiff, then they should stop at L, as the third corner of the deed.

7. There being evidence to show that a certain point opposite to L, marked as M on the diagram, was the fourth corner called for by the defendant’s deed, and which point would be reached by running the third call from L, according to course and distance; held further, that an instruction that if the jury found M was the fourth corner, they had a right to reverse the line so as to find the corner at the intersection with the second line.

8. A tree marked and called for as a pointer, with a line of marked trees leading to another corner, must control distance. N. B; — This case was prepared at January Term, but for want of a diagram was not reported.

[The case of Safrct v Hartman, 7 Jones 199, cited and approved.]

The statement made by the presiding Judge is given in full. The annexed diagram indicates the points in controversy. The plaintiffs beginning corner is indicated by an arrow. Tbe defendant’s corner by a band. (See diagram.)

Civil action for trespass on land, tried before Buxton, J., at Fall Term, 1871, of Harnett Superior Court.

Action commenced 27th September, 1870.

The locus in quo is designated on the annexed plat by L, M, N, 5, 4, 3, marked “Disputed.” The plaintiff read in evidence a deed from Smith & Elliott (Jno. D. Smith & Geo. Elliott) to himself dated the 1st December, 1859, for 1,856 acres, more or less. There was no dispute as to the location of this deed, it commenced at A, and is designated by A, B, O, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, covering the land in dispute. The call in the deed from the corner represented at K, is “ then south 60 degrees,'eást-'é chains and 65 links to a stake and pointers, T. Shaw’s corner, then with his line north 63-¿- degrees, east 31 chains, 29 links to a small gum and gum pointers on the south side of Reedy branch, then north 24 degrees west, 11 chains, 40 links to apiñe with gum and maple pointers in the Reedy branch, then up the various courses of the Reedy branch to T. Shaw’s beginning corner, then north 10 degrees west, 43 chains, etc.,” giving the various calls to the beginning at A. Under the deed the plaintiff entered in 1859, and continued in possession of the land embraced therein, including the disputed part, when two years ago the defendant, under a claim of right, entered upon the disputed part, back-boxed the trees, and cut timber, tor which acts this suit was brought.

There was evidence of the amount of damages.

The defendant, read in evidence a deed from Henry Elliot to Smith & Elliott, the parties under whom the plaintiff claims, dated 3d March, 1855 ; which deed, after giving the boundaries, has this recital “containing 2,925 acres, including 1554 acres, I have sold to Torquil Shaw, arid is not here intended to be conveyed.”

The location of the deed was agreed upon; its boundaries ran all around the land both of the plaintiff and defendant, and included the land of both.

The defendant next read in evidence a deed from Henry Elliott to himself, dated’19lh Jan nary, 1855, for 155-a- acres, more or less, described as followsBeginning at a stake and pointers on the south side of the Reedy branch above Torcjuil Shaw’s house, and runs south 63-J degrees, west 28 chains SO links to a stake and pointers in a small branch; thence south 26% degrees, east 45 chains to a stake and-pointers; thence north 63|- degrees, east 31 chains, 29 links to a small gum and gum pointers on the south side of the Reedy, branch; thence north 2%. degrees;.w-est 11 chains, 40dinks to a-pine with maple and gum pointers'on the-Reedy branch; thence up the various courses obthe Reedy branch,.so as>not to interfere with a small pond of water on said branch,..reserved for the benefit of Smith <& Elliott’s Steam Mill, to the beginning, containing 155% acres, more or less.”

It was agreed that the beginning corner o£> this deed was at 1, as represented in- the plat;-, afeo that running from 1, the course and distance called for at the second corner was at 2. It was also agreed that the course of the line from 2, as called for, -was to be f oil owed,, to-wi t south 26% degrees east. The point in dispute was whore the line running from the corner at 2, in the direction south 2.6-|\ degrees east, was to stop; whetheivat E, as claimed by-the plaintiff, or at 3, as claimed by-the defendant. If it went to 3,. and* the-remaining lines were run according.to course and distance called'for, the figures 1, 2; 3, 4, 5 wonld-irepresent the defendant’s land and include the disputed part;.so that he- would he no tresspasser, as he Held' the-oldest deed! freí» Henry Elliott, under whom both claimed. But if it stopped short at L, and' the remaining lines were run as called for in the deed, then the figures 1, 2, L, M, N, would represent the defendant’s line, and the disputed part would be left out of his line, so that he would he a tresspasser. Eor the defendant, it was in evidence, that there was a marked line of trees, apparently as old as the defendant’s deed, from the beginning corner at 1 to 2 ; also from 2 as far as L ; at L was a stake and oak pointers; L wag distant.from 2 38 chains; there was no marked line betwpett, Is and 3 ;: there was nothing to indicate a. corner at 3,; thp.distance from ,2/to 3 was 45 chains, being the distance called',for in the deed to defendant. By extending line 2, 3'y beyond, 3„. 1 chain and 25, links, a point is reached where, opon a recent survey made for. the defendant two years ago by one McLe,an,.a stake and pine,', pointers were marked as.a corner ; from-.this point there is. ap, old marked line tor about-15., chains in the direction oh 4* of, apparently the same age ag the marked line 1,,2„and 2,- I^j at, the end of the 15.chains the old,marked line gives out, blit the., same surveyor, at the instance of the defendant, and. ip eontinuation, as defendant stated, of the old line sur.yey made by Henry Elliott, w,entonsto 4,.and,there placed¡a stake with pine pointers as a corner,- in- place of. a. gum, which defendant stated-ito a witness used,to bq.there.

These statements, were, made by defendant,, in presence of plaintiff, while the survey ordered for this trial- was going on. The survey, made by McLean was made two years ago. There. Vssas nothing,at 5 to indicate a corner except a stake, which, McLean set up.in. a field cultivated by plaintiff. It was reached, by following course and distance -called for as 4th line in defendant’s deed, but is on the north side of Reedy branch, in--, stead of on the south side as called for. By running the.lines, from 3 to 4, and from 4 to 5, the small pond referred to in the. deed from Henry Elliott to defendant, and indicated op thp plat¿ midway between 5 and N, would be included in., defendant’s, boundary but if. would not be interfered with by defendapf’s-deecf, if his lines were run from L to M, and from M.fo N, The de-.. fondant’s deed calls for 155|- acres, more or, legs. By ru,nning? the outside line as claimed by him, and thus including th;e. dis-_ pnted part, he wmuld get by surveyor’s estimate 153.- acres. By running the inside lines L M and M Nj and thu.s.leaving out the disputed part, he would get¡ bufe 123 acres — the., disputed part containing 30 acres.

It was also in evidence for the defendant, that the distance from 2 to L is 38 chains, whereas the second line of his deed calls for 45 chains, and it was agreed by all the surveyors examined, that if the line L M was reversed as to course and distance, it -would stop at L, but that in reversing from L, it the whole distance called for was run, the line from L would extend 7 chains beyond 2, the admitted second corner of defendant's deed. Tire defendant also proved that his deed was in the handwriting of Henry Elliott, now dead; that Elliott kept surveying; instruments, and sometimes did his own surveying, but usually got surveyor McCormick to do difficult surveying for him.

In reply to defendant’s evidence, it was in'evidence lor the plaintiff that in 1858 the defendant pointed out to the witness, Surveyor McCormick, the stake and oak pointers at L, and told him that Henry Elliott had marked the lines, and had made the corner at L, as a corner of his land; also that defendant pointed out a gum pointer at M, which he said Elliott had marked as a corner; the gum at that time being as large as a man’s leg, which gum had 'since rotted down, but the stump still remaining; also that deiendant pointed out a pine marked as a corner with gum and maple pointers in the Reedy branch at 14, which are still there, and told witness that Elliott had marked them as a corner. In the conversation alluded to the defendant did not specify the day when Henry Elliott marked these lines and corners, whether before or after the conveyance, but merely stated the fact. The plaintiff also proved by all the surveyors that there was a marked liue from L to M, running the course and distance called for as the 3rd line of defendants deed, apparently as old as the line irom 1 to 2 and from 2 to L, that at M, on the south side of Reedy branch, there was a guru stump and gum pointers; that there was an old marked line from M to N running the course and distance called for as the 4th line of defendant’s deed; that at N is a pine marked as a corner, with gum and maple pointers on the Eeedy branch. It was also in evidence, that upon the recent survey no sign oí a gum could be found at 4, which was high and dry land ; it was in proof, however, that gums are short lived trees, that there was clearing and ditching and burnt woods in that locality. It was also proved that the defendant, in the life time of Ilenry Elliott, had coipplained of his not getting his complement of land, and after Elliott’s death, which occurred several years ago, had complained to his executor about it; that they had engaged a surveyor to ascertain the deficiency with a view of its being settled for, and that the defendant had dropped the deficiency from his tax list. The corners L, M and at N, were apparently as old as the agreed corners. The plaintiff offered to introduce a deed from Smith and Elliott, (the same parties under whom he claimed) to the defendant, dated 4th February, 1858, for a tract of land adjoining the land of the plaintiff and the defendant’s 155-J- acre tract, being part of the land conveyed to them in the Henry Elliott deed ; it was offered with the avowed purpose of fixing the 3rd corner of defendant’s 155^- acre tract at the point L.

The defendant’s counsel objected to the evidence for such purpose, and asked his Honor to exclude it.

His Honor remarked that he would admit the evidence, but would reserve his opinion as to its legal effect. The deed was read in evidence. There was no dispute as to its location. It is designated on the plat. Its beginning corner is the same as the beginning corner of the 15o£ acre tract of the defendant, at 1 or O, which is the same, then to P, then to John Elliott’s corner, then to I), then to E, then to F, then to G, then to II, then to I, then to J, then to K, then south 60 degrees east 6 chains 65 links to a stake and pointers,' his own corner; the course and distance leading- towards L, the distance Would fall short 25 links as measured, then with his own line to his corner at 2, and then to the beginning.

His Honor afterwards being of the opinion that the faking of this deed by the defendant, was evidence of a recognition by him of the dividing-line between him aud the plaintiff to-wit: the line running iron* D, by the various courses up to L, and; as such, ought to go to the jury-, upon the question of the location of the corner at Jj, as a circumstance to be considered by-them, and also being..of the opinion that-the plaintiff was enti-. tied to submit evidence of this act of' the defendant (taking., such deed) as-, confirmation of the evidence of surveyor McCormick in. regard ito the statement of the defendant about this, very corner at L. Upon those considerations his Honor refused, to exclude the evidence, and defendant excepted.

The plaintiff preved by a witness, Angus Shaw,- that on one./ occasion after the defendant had obtained his deed from Henry Elliott for the 155-3,-,acres, that witness was present with defendant on the land, upon which, occasion the defendant complained that Elliott had not given him Ijis complement ofland.

The plaintiff'then, offered to .prove by this same witness that upon the same occasion the defendant pointed'to a bunch of gums 60 or 70 yards distant! from where they were standing,- and remarked to witness thatdllliott had made “a corner in tiloso,gums, and had’nt given him-his complement ofland.”'

To the reception^ of this evidence the defendant objected. Ilis Honor remarked that the objection was well taken,..unless-the particular corner pointed out was identified. The witness-then testified that the bunch ot gums referred to stood at the mouth of a small branch where it empties into Reedy branch. Surveyor McCormick was then* called' to the witness stand, and testified that the locality of the gnrn corner at M, where the defendant had showed, him. the gum the size of his leg, marked as a corner by Elliott, and where the gum stump is still to bo found, corresponds with the description of the spot spoken of by the witness Angus Shaw. Upon this proof as to the identity of the corner being made, his Honor admitted the proposed proof, and the witness Angus Shaw testified accordingly.

The defendant excepted. The defendant’s counsel..ajsked for the following special instructions to the jury :r

1st. That the land of the defendant should be so located as to enclose within its boundaries the small pond mentioned in the deed from Henry Elliott to Torquil Shaw, January 19th, 1855, and reserved for the benefit of Smith & Elliott’s Steam, Mill.57

This instruction was declined. Defendant excepted.

2d. That as 155$ acres of the land wore reserved by Henry; Elliott in his deed to Smith & "Elliott, as before that time sukb and conveyed to Torquil Shaw, that defendants land should be-so located as to-secnre to him that quantity of land.

This instruction was declined ;,*, defendant excepted.

His Honor thinks it proper to add that the circumstances of the reservation of the 155-J- acres was pressed before the jury, by defendant’s counsel, and his Honor was of opinion that this-was the only use that could be legitimately made of it.

3d. That at the time of making..the deed, 19tU July, 1855,. the-second liue extended from figure 2 to the figure 3, that being.,the point whore the distance gave out.

His Honor declined giving this instruction.! to the jury, anda charged, theme as- fallows :

The corner at; 2 being an admitted corner of the Torquil Shaw 155$ ansas-, .that after reaching 2 they would go the course called for,.admitted to be along the marked line leading, from.2, and they would also go the distance called fin* in the-; deed 45 chains to-3, where the distance gave out,.unless, before* getting to 3, the distance was controlled by a corner established-at the making of the deed,, and indicated by some natural objpet, as trees marked as pointers. That if from,the evidence submitted to them they were satisfied that such cuan or existed at L, as contended for by the plaintiff, then they should stop at L,,as the 3rd corner of the deed.

That; if they were not satisfied that L was such corner, but were satisfied from the evidence that M was the 4th corner c*alled-for as a small gmn and gum pointers on the south side oitlie-Beedy branch, with a marked line leading to it according to the course and distance called tor, then to ascertain the 3rd corner, the}' might reyerse the line from M and the point of intersection with the line running from 2, which according to all the surveyors would be at L, would be the 3rd corner, and the tact likewise testified to that running back from L to 2, the distance called for 45 chains would extend 7 chains beyond 2'would make no difference, they would stop at 2, which is an agreed corner.

That it they were not satisfied either in regard to L or M being such corners, then there was nothing to control the distance called for on the second line, but they would go the whole distance, 45 chains, and stop at 3 as the 3rd corner.

Defendant excepted, both because his Honor declined to give the instructions asked for and because of the instructions actually given.

Under these instructions there was a verdict for the plaintiff, and from the judgment rendered thereon the defendant appealed.

Neil McKay, for the plaintiff.

B. c§ T. (J. Fuller and IF. McL. ILcJIay, for defendant.

PnARSON, O. J.

The evidence: 1. For the reasons stated by bis Honor, we think the deed from Elliott and ¡Smith to defendant, dated 4th February, 1858, was admissible evidence.

2. The testimony of Shaw was properly admitted. It would have been more forcible bad the witness himself identified the tree; The fact that it was done by another witness only weakens it in degree, but does not exclude it as incompetent.

3. The samo remark is applicable to the evidence as to the apparent age oí the line trees from 2 to L, and from L to M, and from 1 to 2. True, direct evideuce that these trees were marked at the making of tho deed would have been much stronger, so if the trees had been blocked and found to correspond this natural evidence would have, been stronger, but surveyors can form an opinion from tbe external appearance, whether trees have been recently marked, or whether it is an “ old marked line,” so they can form an opinion whether the lines are of tire same age. This furnishes natural evidence, ■weaker, in degree, bnt competent and fit to be considered by the j ury.

The instructions asked for :

1st. The instruction asked in regard to the small pond was properly refused. The wording of the deed leaves it nnceriain whether the line was near to the pond, but so as not to take it in, or whether the fourth line did take in the pond, and the purpose was to except it out of the land granted. Suppose the latter to be the proper construction. That would not settle the dispute between L and 3, which is “ the point in the case tor running to M, if course and distance is then to be controlled by the pond as a natural object, it will be met by a diagonal line from W to 5, thence with the branch, so that natural object will be taken in without disturbing any but the fourth line, and without touching the land in dispute.

2d. The instruction that the land must be located so as to include 155£ acres, was properly refused. The defendant had all the benefit of it that he was entitled to, as a circumstance that might be considered by the jury in determining questions of boundary.

3rd. The third instruction asked for is covered by the charge.

His Honor told the jury that the distance called for must be observed and the line run to 3, unless the distance was controlled by a corner established at the making of the deed and indicated by some natural object, “ as trees marked as pointers.” A tree marked as a corner controls distance; this is settled, and the same reason applies to trees marked as pointers, to a corner at a stake, particularly where there is a marked line going off from the spot indicated according to course and distance of the third line, leading to another corner and pointers. So the only point in the ease is, was there evidence for the j«ry as to the trees marked ior pointers, and as to the marked line trees ? The declaration of the defendant and the other evidence ceri-tainly warranted his honor in leaving the"iuatter to the jury.

Ilis Honor instructed the jury that if M. was established as "'the fourth corner the line might be reversed so as to find the corner at the intersection with the second line. The- only ob- , jection to this is that it would seem to be superfluous, for it is not reversing merely the course, but here we have a line of ^ marked trees, and ■ supposing M to be established, ■ it would make but little difference whether yon follow the line from M to<L, or went to M and followed the marked line back to L, and 5'ft could only be natural from the fact that at M, a small gum was marked as a corner and gum pointers on the south side of the Needy branch,’ whereas at L, the call was for a stake with pointers. The main point was that -.at L there was a tree ■ marked as a pointer, and that in running the nest call, according to course and distance, you had a line of marked trees leading to M, another corner. Our decision is that a tree marked md called for as a pointer, with a line of marked trees leading to another corner will control distance. Our ease is • stronger than Safret v. Hartmcm, 7 Jones 199, for here the fact of there being trees marked for planters is set out in the •deed.

The principle of controlling distance-by natural objects is based on the fact that it is easier for a mistake to be made in regard to distance than dn regard to-a tree' marked as a corner, or a tree marked asta pointer!and called for in the deed, and marked line trees, so in case these several modes of description ■ do not correspond, the less certain is to give place to the more >certain.

No error.

Per Curiam. Judgment affirmed.