Opinion
(December Term, 1835.)
In questions of boundary, a plat or map of an adjoining tract of land, made at the instance of the owner, is evidence, as the act of the owner, against him and all persons claiming the same land under him; though it is not conclusive, and may be explained.
THIS was an action of EJECTMENT, brought by the lessor of the plaintiff, to recover the possession of a small parcel of land, included between the dotted lines B. K. F. C., as represented in the annexed diagram.
, SEE 18 N.C. 279.]
On the trial at Stokes, on the last Circuit, before his Honor Judge NORWOOD, the lessor of the plaintiff made out his case by producing a grant from the state bearing date in 1832, covering the land in dispute; and proving the defendant in possession.
The defendant set up title under a grant from the state to one David Lawson, dated in 1780; and showed a regular chain of conveyances down to himself. The grant to Lawson called for the following boundaries, to wit: — Beginning at the Virginia line on a white oak; running south twenty-five chains, crossing said branch to a white oak; thence east forty chains to a red oak; thence north twenty-five chains to a post on the Virginia line; thence west forty chains to the beginning. The dispute between the parties was, whether the point represented on the diagram by B or K was the corner called for by the grant to Lawson. It turned out, upon a recent survey, that the line from A, at the beginning corner of the Lawson tract, to K, was about twenty-four poles more than that called for in the grant. The defendant introduced several witnesses for the purpose of proving that K was marked and established as the corner of Lawson's grant at the time of the original survey; and then produced the field book of Joseph Cloud, the original surveyor, (he being dead,) from which it appeared that Cloud had, in the year 1779, made a survey for one David Davidson, of a tract of land containing 214 3-4 acres, on which a grant issued in 1783; and also, that he had made a survey for David Lawson, in which he called for the Virginia line, a white oak, thence south twenty-five chains to a white oak, David Davidson's corner. It further appeared in evidence, that one Beazley at one time owned the lands set forth in the grant to Davidson; and that the lessor of the plaintiff was then the owner of the same lands, having purchased them at a sheriff's sale under an execution against Beazley. The defendant then proposed to offer in evidence a plat made in the year 1825 at the instance of Beazley (who claimed all the lands adjoining that in dispute lying to the south and west,) by Joseph Cloud, the original surveyor, with his notes and explanations, for the purpose of showing that the point K was the original corner of the Davidson tract, and the one mentioned in the field book of Cloud as the corner of Lawson's grant or survey. Another plat made by Cloud in the year 1822, setting forth the lands adjoining that in dispute, on the east, south, and west, as alleged by the defendant, was also offered by him; but it did not appear at whose instance the latter plat was made, or from whose custody it came. These plats his Honor refused to admit, upon the ground that they did not appear to have been made by Cloud, upon any survey by him then made, or from his field book, or in the discharge of any official duty required of him by law. The lessor of the plaintiff then having offered evidence tending to shew the original corner to have been at B, the jury returned a verdict for him. A motion was submitted by the defendant for a new trial, because of the rejection of the plats, it being contended — first, that the notes and explanations contained in them were admissible as evidence in questions of boundary; and secondly, that one of the plats was made at the request of Beazley, under whom the lessor of the plaintiff claimed the Davidson tract, and that it settled the corner of that tract to be at K; and was therefore evidence against the lessor of the plaintiff as to the establishment of that corner. The motion was overruled and the defendant appealed.
No counsel appeared for either party.
— We are of opinion that the survey or map of 1825 was proper evidence, upon the ground that it was made at the instance of Beazley, who was then the owner of the estate now claimed by the lessor of the plaintiff. The Lawson tract and the Davidson tract began at the same corner on the Virginia line; and the white oak, it seems from the original field book, was the common terminus of the first line of both tracts. Beazley owned the Davidson tract, and also the tract called the Burge Survey; and he claimed, according to the map, that the corner white oak of the Davidson tract stood in the line of the Burge tract. The map would be evidence against him of the extent of his estate or claim — not upon the ground that it was the work of the county surveyor, or a plan subsequently drawn by the original surveyor, upon whose certificate the patents issued, but because it was Beazley's own act. And it is also evidence against those who claim the estate through him. But it would not be conclusive against either, and might be explained. Bridgman v. Jennings, 1 Lord Ray. 734. The plat of 1822, we think, was properly rejected, because there was no evidence at whose instance it was made, nor from whose custody the paper came.
There must be a venire de novo.
PER CURIAM. Judgment reversed.