A deed may incorporate a map or plat. See Wise v. Harrington Grove Cmty. Ass'n, Inc., 357 N.C. 396, 406, 584 S.E.2d 731, 739 (2003); Kelly v. King, 225 N.C. 709, 716, 36 S.E.2d 220, 224 (1945); Inland Harbor Homeowners Ass'n, Inc., 219 N.C. App. at 351-52, 724 S.E.2d at 95-96. If a deed properly identifies the property it encumbers, but also mistakenly references another property, the mistaken reference "shall not overrule that which is already rendered certain."
[D.E. 92 at 15-20]. See also Kelly v. King, 36 S.E.2d 220, 223 (N.C. 1945) ("While the general rule is that a description of land as bordering on a nonnavigable stream carries to the thread of the stream, this is rebutted by words which clearly restrict the grant to the edge or shore of the stream.") (internal citation omitted) (emphasis added). Because North Carolina's ability to convey title to the subject waterway depends on the waterway's navigability, which is still an open question, summary judgment is inappropriate at this stage.
The court cited clear state supreme court precedent: "`Where a deed contains two descriptions, one by metes and bounds and the other by lot and block according to a certain plat or map, the controlling description is the lot according to the plan, rather than the one by metes and bounds.'" Kelly v. King, 225 N.C. 709, 716 (1945) (citation omitted). The court in Peterson held that "a clearly referenced plat description" takes priority over a deed description or the parties' intentions.
Richardson v. Boston, 60 U.S. (19 How.) 263, 269, 15 L.Ed. 639, 642 (1857). See also Parmele v. Eaton, 240 N.C. 539, 83 S.E.2d 93 (1954); Kelly v. King, 225 N.C. 709, 36 S.E.2d 220 (1945); Perry v. Morgan, 219 N.C. 377, 14 S.E.2d 46 (1941); Insurance Co. v. Parmele, 214 N.C. 63, 197 S.E. 714 (1938). Absent the statutory authority conferred by CAMA and the Dredge and Fill Act, the State would not have had authority to seek an injunction of defendant's activity.
eing allowed to vary, alter or modify the terms of a deed,otherwise free and clear of all ambiguities, in an attempt todefeat an action for breach of warranty: Cheves 186, 34 Am. Dec. 590; 57 S.E.2d 470, 216 S.C. 280; 99 S.E. 108, 111 S.C. 516; 1 Strob. 48; 97 S.E.2d 79, 231 S.C. 34; 14 Am. Jur., Sec. 100. As to where an asserted defenseis an attempt to vary or modify the terms of a deed, thelower Court should sustain a demurrer thereto: 2 Speers 649, 42 Am. Dec. 391; 112 S.C. 56, 98 S.E. 854. As toAppellant being entitled to a directed verdict: 172 S.C. 435, 175 S.E. 402. Messrs. Carlisle, Brown Carlisle, of Spartanburg, forRespondent, cite: As to a plat, which is recorded and referredto in a deed, becoming as fully a part of the deed asif it were reproduced on the deed itself, otherwise, the referenceto a recorded plat would be mere surplusage and ofno effect: 236 S.C. 612, 115 S.E.2d 301; 198 S.C. 118, 16 S.E.2d 816; 206 S.C. 51, 32 S.E.2d 882; 20 Am. Jur.2d, Covenants, Sec. 179; 225 N.C. 709, 36 S.E.2d 220; 18 C.J., Deeds, Sec. 251; 229 S.C. 16, 91 S.E.2d 542; 16 Am. Jur., Dedication, Sec. 57; 16 Am. Jur. Deeds, Sec. 273; 206 S.C. 51, 32 S.E.2d 882; 2 Bailey 78. As to error on part of trial Judge in failing tosustain Respondent's motion for directed verdict upon theground that the question of damages had become moot: 43 S.C. 29; 1 McCord 584; 154 S.C. 25, 151 S.E. 221; 20 Am. Jur.2d. Covenants, Secs. 145, 148. September 23, 1965.
A map or plat referred to in a deed becomes a part of the deed and need not be registered. Collins v. Land Co., 128 N.C. 563, 39 S.E. 21. See also Lantz v. Howell, 181 N.C. 401, 107 S.E. 437. In Kelly v. King, 225 N.C. 709, 36 S.E.2d 220, it is said: "It seems to have been established by numerous decisions of this Court that where lots are sold by reference to a recorded plat, the effect of reference to the plat is to incorporate it in the deed as a part of the description of the land conveyed. Elizabeth City v. Commander, 176 N.C. 26, 96 S.E. 736. As was said in Collins v. Land Co., 128 N.C. 563, 39 S.E. 21, `a map or plat referred to in a deed becomes a part of the deed as if it were written therein.' Ins. Co. v. Carolina Beach, 216 N.C. 778, 3 S.E.2d 21; Pearson v. Allen, 151 Mass. 79. `Where a deed contains two descriptions, one by metes and bounds and the other by lot and block according to a certain plat or map, the controlling description is the lot according to the plan, rather than the one by metes and bounds.
Carlisle, Brown Carlisle, of Spartanburg, forAppellants, cite: As to the reference, to a recorded plat indescribing real estate in a deed, incorporating the plat, andwhat is shown thereon, in the description so as to make theplat a part thereof: 236 S.C. 612, 115 S.E.2d 301; 206 S.C. 51, 32 S.E. 882; 198 S.C. 118, 16 S.E.2d 816; 14 Am. Jur., Covenants, Sec. 203; 125 Or. 150, 262 P. 853, 266 P. 891, 57 A.L.R. 311; 146 Ill. 555; 160 Ill. 163, 43 N.E. 486; 107 P. 178 (Wash.); 111 N.E. 879 (Mass.); 201 Va. 514, 112 S.E.2d 137; 207 Ga. 155, 60 S.E.2d 371; 225 N.C. 709, 36 S.E.2d 220; 18 C.J., Deeds, Sec. 251; 220 S.C. 10, 66 S.E.2d 327; 14 Am. Jur., Covenants, Sec. 332; 229 S.C. 16, 91 S.E.2d 542; 14 Am. Jur., Dedication, Sec. 57; Tiffany on Real Property (2d Ed.), Section 572; 8 Rich. 315; 130 A.L.R. 643, 651; 10 S.C. Law Quarterly 3, p. 399. As to rule that fraud cannot be predicated uponmisrepresentations of law or misrepresentations as to mattersof law: 23 Am. Jur. 809; 175 S.C. 117, 178 S.E. 503; 12 R.C.L. 295; 23 Am. Jur. 814; 1 Bigelow on Fraud 487-488; 207 S.C. 15, 30, 35 S.E.2d 47. As to the lawimputing, to a purchaser of real estate, notice of the recitalscontained in the written instruments forming his chain oftitle: 145 S.C. 559, 13 S.E. 848; 220 S.C. 10, 66 S.E.2d 327; 126 S.C. 180, 119 S.E. 186. As to duty upon apurchaser of real estate to make such reasonable inquiry andinvestigation as is suggested by the recitals and referencescontained in the instruments forming his chain of title: 205 S.C. 495, 32 S.E.2d 777; 126 S.C. 180, 119 S.E. 186, 220 S.C
Furthermore, what are the boundaries of a deed is a question of law for the court, where they are, is a question of fact for the jury. Scull v. Pruden, 92 N.C. 168; Davidson v. Shuler, 119 N.C. 582, 26 S.E. 340; Rowe v. Lumber Co., 128 N.C. 301, 38 S.E. 896; Gudger v. White, 141 N.C. 507, 54 S.E. 386; Sherrod v. Battle, 154 N.C. 345, 70 S.E. 834; Rose v. Franklin, 216 N.C. 289, 4 S.E.2d 876; Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440; Kelly v. King, 225 N.C. 709, 36 S.E.2d 220; Lee v. McDonald, 230 N.C. 517, 53 S.E.2d 845. In Reed v. Shenck, 14 N.C. 65, in concurring opinion by Ruffin, J., it is declared "a deed is construed by the court, not by the jury.
6 of sec. 10683, Rev. Codes of Montana 1935; Cook v. McClure, 58 N.Y. 437, 17 Am. Rep. 270; Greenspan v. Yaple, Sup., 189 N.Y.S. 115, 118; Hutton v. Yolo Orchard Co., 203 Cal. 724, 265 P. 933. Kelly v. King, 225 N.C. 709, 36 S.E.2d 220, 221, 223, involved the title and boundaries of certain artificially made land built by dredging along a non-navigable stream or sound upon which land so built and reclaimed a road had been laid out and a town hall erected. There were numerous plaintiffs all being lot owners who claimed that their lots extend to the center or thread of the channel of the stream.
The plaintiffs did not appeal. As we think there must be a new trial for reasons hereinafter stated, we deem it unnecessary now to determine the extent of the plaintiffs' rights, if any, to the alluvion created by the imperceptible action of natural forces or to that produced in consequence of human agency, under the conflicting evidence here presented. See Kelly v. King, 225 N.C. 709, 36 S.E.2d 220; Ins. Co. v. Parmele, 214 N.C. 63, 197 S.E. 714; R. R. v. Way, 169 N.C. 1, 85 S.E. 12; Ward v. Willis, 51 N.C. 183; Lamfrey v. State, 52 Minn. 181; Brundage v. Knox, 279 Ill. 450; Patton v. Los Angeles, 169 Cal. 521; County of St. Clair v. Lovingston, 90 U.S. 46; 45 C. J., 526; Tiffany Real Property, sec. 534, et seq. In their original complaint the plaintiffs had alleged title to the land described, not only under the grant of 1853, but also under the judgment in the proceeding under the Torrens Law entitled Perry v. Morgan. Later, perceiving that the petition and judgment in that proceeding made reference to the Morgan line as the eastern boundary of lands claimed by plaintiffs under the grant of 1853, at the trial plaintiffs asked leave to amend the complaint by withdrawing all reference to the proceeding under the Torrens Law. This was allowed over objection.