Den on demise of Tatum v. Sawyer, 9 N.C. 226, 2 Hawks 226 (1822)

Dec. 1822 · Supreme Court of North Carolina

9 N.C. 226, 2 Hawks 226

Den on demise of Tatum v. Sawyer and Paine.

From Pasquotank.

Lands covered by navigable waters are not subject to entry under the entry law of 1777.

It is the legitimate object of a particular description in a grant, to designate with more certainty and precision what the parties suppose to be vague and ambiguous in the general one; and, therefore, wherever the particular description restrains the general one to natural boundaries, upon those boundaries being shewn, the general description is confined to them.

The lessor of the Plaintiff claimed title under a grant from the State, bearing date the 21st of June, 1819, conveying certain lands in Currituck county, near Curri-tuck Inlet, or Betsy’s Shoal. The Defendants claimed title under a grant issued the 2d day of December, 1807, to Thomas Williams, Joseph Fercbee and John Williams, in the following words: “ A tract of land, con- “ tabling three hundred and fifty acres, lying and being in the county of Currituck, known by the name of ii Betsy’s Marsh or Island, beginning at Herring-gut, the “ beginning place of John Humphrey’s entry, running “ north 79° east six chains and thirty links, thence north “ 86° east five chains, thence south 68° east forty chains, “ to a turn in South Channel, then north 13° east seventy “ chains to a point opposite North-point, then south 80° “ west forty chains along North Channel, then south 69° “ west forty-eight chains, then south 58° west five chains, “ south 32° west thirty-five chains to the great shoal at “ the head of the channel, thence to the first statiou.”

It was proved, that from the year 1777 up to the present time, the land to the westward of B Channel, on the annexed Diagram, has alwrays been known by the name of Betsy’s Marsh, while that to the eastward of the same channel, including the Plaintiff’s grant, has been called Betsy’s Shoal; and also that the whole marsh on which Plaintiff’s grant lies, has formed gradually since the year 1802, up to which time it was a sandy beach, always covered at flood tide and dry at ebb.

It also appeared in evidence, that the plat annexed to the Defendant’s grant was not an actual survey, but had been made by direction of the grantees from some former plat of the same land. John Williams, and Thomas Williams, who was one of the grantees in Defendant’s grant, and also named in the survey as one of the chain-carriers, proved that in the year 1800, the county surveyor actually surveyed the land, and in so doing, extended the chain around the marsh now claimed by Plaintiff ; that this survey was made for John Williams and Joseph Ferebee, but that no grant issued thereon. The county surveyor proved that he did include in his survey the land now claimed by the Plaintiff, but in making the plat, he was directed by Williams and Ferebee, to leave out the easternmost part of the land, by drawing a line from the turn in South Channel north 24° east to a point nearly opposite North-point, that he did so, and thereby excluded the land granted to and claimed by the Plaintiff. The term marsh, it was proved is applied only to such land as is covered with salt grass, and not to that entirely destitute of vegetation.

For the Defendant it was insisted below, 1st. That the land included in the Plaintiff’s grant was not subject to the entry laws, as it was not land when the act of 1777 regulating entries was enacted.

2d. That the grant under which the Defendants claimed, being a conveyance of Betsy’s Marsh or Island, subsequent description was unnecessary, and the whole Isl- and passed.

3d. That the Plaintiff’s grant was made by accession to the Defendants’ lands, and therefore pertained to them.

The presiding Judge instructed the Jury,

1st. That the marsh claimed by Plaintiff was subject to the entry laws passed in 1777.

2d. That no accession could belong to the Defendants, except such as was made since the 2d of December, 1807, the date of the grant under which they claim ; that if the Jury believed that the plat made for the grant under which the Defendants claim, was not intended by the surveyor and grantees to cover the lands claimed by the Plaintiff, and which were not included within the Defendants’ grant or plat, that it did not cover contrary thereto. The Jury found a verdict for the Plaintiff, and a rule to shew cause why a new trial should not be granted, having been discharged, judgment was rendered pursuant to verdict, and the Defendants appealed to this Court.

DIAGRAM.

Henderson, Judge,

delivered the opinion of the Court.

Lands covered by navigable waters are not subject to entry, under the entry law of 1777, not by any express prohibition in that act, but being necessary for publick purposes as common highways for the convenience of all, they are fairly presumed not to have been within the intention of the Legislature. But when the cause of that exemption ceased to operate, the exemption itself ceased j and they, like the other vacant lands of the State, became the subject of entry.

The next objection is, that the description contained, in the Defendants’ patent, covers the whole of Betsy’s Marsh or Island, notwithstanding the particular description given of the abuttals and boundaries of the grant. This would be to deny to the particular description its legitimate office : for it is the object of a particular description to designate with more certainty and precision what the parties suppose to be vague and ambiguous in the general one. The only limitation or restriction is. that it must not totally contradict it. Its identity should be plain and capable of ascertainment. In this case, it restrains the general description to natural boundaries ; an(j ^independent of the parol evidence) upon the situation of those natural boundaries being shewn, the general description would be limited and confined to them. But the parol evidence which is offered in its support, is not contrary to the grant, but in affirmance of it, and points out very clearly the reason why the particular description was introduced, to-wit, the ambiguity (as to their opinion of the extent of Betsifs Island) which a location of the patent upon the lands would produce. And although I am not satisfied with that part of the charge of the Court, which informs the Jury, that if they believe it the intention of the surveyor not to include the lands in controversy within the Defendants survey, that they would not be included contrary thereto $ for it is not the presumed or probable intent of the surveyor or the parties which should govern the Court or Jury in ascertaining the bounds of a patent, but the actual description given in the survey or grant: yet, as the verdict is right upon the whole of the evidence, and every part thereof, it would be useless to award a new trial, for the result must be the same. As to the evidence given of the meaning of the word Marsh, it may be observed that the meaning of words which are peculiar to a particular part or section of the country, may be shewn by witnesses, but not so as to words in general use throughout the State. They must be understood alike in all places. This being a word in general use, cannot have a local or sectional meaning put upon it by parol testimony.