Summary
In Gilmer v. Young, 122 N.C. 806, 29 S.E. 830, it is said: "A custom, in order to amount to notice to all persons, must, like the common law, be general.
Summary of this case from Braswell v. BankOpinion
(Decided 12 April, 1898.)
Contract for Purchase of Land — Contract — Accurate Survey — Horizontal Survey — Custom — Notice.
1. Where a contract for sale and purchase of land provided that it should be paid according to the number of acres contained in the tract, to be ascertained by an "accurate survey": Held, that the survey should be by horizontal and not surface measurements.
2. A custom, in order to amount to notice to all persons, must be general, like the common law, and hence, a local or general custom is not notice to any one unless there be actual knowledge of it, and will not be considered as having entered into a contract without such knowledge being shown.
ACTION, tried before Brown, J., at Spring Term, 1897, of HAYWOOD. The action was brought to recover $1,205, the alleged balance of the purchase price of a large boundary of land contracted to be bought by the defendant at so much per acre, the number of acres to be ascertained by an accurate survey. The amount claimed was the difference between the price of the acreage ascertained by two methods of survey — the surface and horizontal — the plaintiff insisting upon the former and the defendants upon the latter as the correct method.
W. T. Crawford and A. C. Avery for plaintiff.
W. J. Welch for defendants.
FURCHES, J., dissents, arguendo, in which DOUGLAS, J., concurs.
It was admitted that all the works on surveying lay down the level or horizontal methods as the correct mathematical mode for ascertaining the acreage in a given area and boundary.
It was admitted at date of the contract for purchase and long before and since the defendants were residents and citizens of the State of New York.
Upon an intimation by the court of the opinion that plaintiff (808) could not recover, and that the horizontal method was the proper method of surveying lands, the plaintiff submitted to a nonsuit and appealed.
The object of this action is to ascertain the true number of acres in two large tracts of land. It was admitted that the boundaries were all located and undisputed; that the purpose of this action was to determine the number of acres within said boundaries, and that the only question was whether the acreage was to be (809) computed by surface measurement or by level or horizontal measurement, according to the rules laid down in the standard works on surveying. The contract was to pay a certain price per acre for all the acres within the admitted boundaries. One clause of the contract was: "Immediately upon the decision of the question of title, an accurate survey shall be made of said tracts of land for the purpose of ascertaining the number of acres in each tract." Surveys were made on each theory and the difference ascertained. What is an accurate survey, therefore, is the important question.
All the standard authorities being against the method of surface measurement, and this being admitted, there seems to be but little for this Court to consider.
When the State granted its western domain in large bodies, there is no evidence whatever that the State adopted the surface measurement, and there is no ground for presuming that it did so, in spite of the fact that the authorities agree in laying it down that the horizontal measurement is the correct one. His Honor properly adopted the latter theory, from which the plaintiff appealed.
The difference in the two modes of measurement is material. Suppose the body of a large grant should be comparatively flat and level, and that several of the boundary lines should cross high points and deep ravines. Of course the calculation would show many more than the true number of acres, whereas the horizontal measurement would give the true acreage.
Looking for a corner according to course, distance, chops, and the like is a different question from that of measuring the distance between two admitted corners, on a given course.
In Stack v. Pepper, 119 N.C. 434, although an argument was (810) made in support of the surface theory, the opinion recognizes the horizontal theory by eliminating from the distance called for in the deed the height of a cliff nearly perpendicular which lay across the line. The argument of the inconvenience or impracticability of climbing a perpendicular cliff is without force, because mathematics, being a scientific process, the surveyor, by offsets and like means, can accurately find the upper point of a perpendicular line from the last certain point fixed by the surveyor's stick.
The plaintiff offered evidence to show that in Western North Carolina it was customary to measure on the surface line, which was excluded. A custom, in order to amount to notice to all persons, must, like the common law, be general. A local or general local custom is not notice to any one, unless there be actual knowledge of it, and it will not be treated as entering into the contract without such knowledge. 27 Am. Eng. Enc., 743 et seq. The defendant is a citizen of New York, and it is admitted that he had no notice of any alleged local custom when he purchased the land. There was no error.
Affirmed.