Opinion
Spring Term, 1802.
When the lines called for in a grant were "East 179 poles to an oak, thence southwardly, the various courses of the river"; and there was a marked oak at the end of the distance; and the river from the point where a direct line from the oak would intersect it, ran southwardly; but if the east line went directly to the river, the river from this point of intersection would run westwardly until opposite the oak; it was held that the jury ought to find the line to the oak, and thence southwardly to the river, if they believed that to be the real line run when the original survey was made.
Ejectment. The land claimed by the plaintiff was granted in the year 1745, and became the property of Walden in 1764, who, after owning it for thirty years, conveyed to the plaintiff. The courses and distances expressed in the patent were as follows: Beginning on the river, running then west 179 poles, then north 179 to a pine on the road, then east 179 poles to an oak, then southwardly the various courses of the river to the beginning. The pine at the end of the second line was proved, and in running the third line two fore and aft trees were found whose marks denoted age; at the end of the distance and about six poles northwardly of the latter line, was also found a black oak tree marked as a corner, though in appearance the marks were not so old as either those on the pine or on the line trees. This oak, however, was called by Walden his corner tree, and before the sale to Pender he said he could not sell further than the oak. If the third line stops at the termination of the distance, a line drawn thence south reaches the river at the distance of about 25 poles and leaves out the land claimed by the plaintiff. Whereas, if the third line is continued for 115 poles beyond the distance called for, it reaches the river and includes the land for which the suit is brought.
Haywood and Stanly for the plaintiff.
Harris for the defendant.
It was argued for the plaintiff that the river, in the course of the third line, must be the boundary; had it been expressly called for as the termination of the line it could not be more completely designated than it is by the fourth and last line being directed along its various courses to the beginning. The distance, therefore, must be disregarded, according to the cases of Sandifer v. Foster, 2 N.C. 237, and Harts- (229) field v. Westbrook, ibid., 258.
For the defendant, it was insisted that the cases cited could not govern this, which had features peculiar to itself, and in no wise resembling those relied upon. Here the word "southwardly" in the grant imports a direction to the river from the point where the distance of the third line gives out, and may well be taken as descriptive of the very short line which reaches the river; this seems evident, when it is considered that 179 poles form the length of each of the principal lines; and that the corner tree at the end of the disputed line, or one very near it, is well established.
To decide this question upon the words of the patent alone, the inclination of my mind would be in favor of the plaintiff's construction. But, upon examining the situation of the land as described in the plot, and upon hearing the evidence with respect to the marked corner, a very strong presumption arises that the word "southwardly" was inserted in the patent for a purpose more significant than that of describing the various courses of the river to the beginning. The case, therefore, resolves itself into a question of evidence, whether the lines and corners are established with such certainty as to create a belief that the third line was intended to stop at the end of the distance, and thence to pursue a southwardly course in order to arrive at the river. For if that was the land originally patented, there should be a verdict for the defendant.
Verdict for the defendant.
NOTE. — See Sasser v. Alford, 3 N.C. 148; Person v. Roundtree, ante, 69, and the cases referred to in the note thereto.
Cited: Pender v. Coor, 3 N.C. 183; McPhaul v. Gilchrist, 29 N.C. 173; Whitaker v. Cover, 140 N.C. 284.
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