Opinion
(March Term, 1796.)
One line of a boundary was from a poplar on a swamp, "thence down the swamp to the beginning": Held, that the swamp, and not a straight line from the poplar to the beginning, is the boundary.
The patent called for a beginning at a tree, which stood (though not so expressed in the patent) near the swamp, thence in a rectangular course from the swamp, thence south __________ degrees west, thence north to a pine (which also stood near the swamp, but not said to be so in the patent), thence to the beginning, not taking any notice or making any mention of the swamp. The patentee conveyed part of this land to Eaves, who conveyed to Hartsfield. Eaves' deed began at the beginning corner of the patent, thence a rectangular course from the swamp, thence south, thence north to the swamp to a poplar, thence down the swamp to the beginning. The trespass complained of was on the opposite side of the swamp from the poplar. It was within the land of the plaintiff, if a direct line from one boundary to the other was the true one; but not within it if the swamp was the true boundary.
The swamp is to be considered as the boundary, but that this judgment may not be hurried, you may move the matter at another day. Should the opinion of the Court be altered in the meantime, they will then set aside the nonsuit now ordered.
The plaintiff was nonsuited.
A few days afterwards it was moved by General Davie that this nonsuit should be set aside, saying he wished the opinion of the court upon this point, because another suit was depending in court upon the same point, between Hartsfield and Fuller, which would be disposed of immediately should the Court be of opinion that the swamp was to be considered as the boundary.
A case similar to the present was decided at Edenton last term, Foster v. Sandifer, ante, 237. The expression there was, "thence along the river"; here it is, "thence down the swamp to the beginning." They are both of the same import, and Foster v. Sandifer is therefore fit to govern the present, and accordingly the swamp in the present case is to be considered as the boundary. Let the nonsuit remain, and the rule to show cause why it should not be set aside, discharged.
Then General Davie dismissed the other suit of Hartsfield v. Fuller.
Cited: Rogers v. Mabe, 15 N.C. 194; McPhaul v. Gilchrist, 29 N.C. 173; Baxter v. Wilson, 95 N.C. 143; Brown v. House, 118 N.C. 879; Rowe v. Lumber Co., 133 N.C. 437; Whitaker v. Cover, 140 N.C. 284; Power Co. v. Savage, 170 N.C. 629.
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