Opinion
June Term, 1824.
1. In questions of boundary marked lines or trees are more certain than course and distance, and therefore shall control them. Accordingly, where there has been a long and continued possession up to lines variant from those called for in the grant, and it appears that such lines were recognized as the true lines of the grant by several adjoining patents; these are facts which point to something controlling the courses and distances of the grant, and should therefore be submitted to the jury to draw from them such inference as they may think proper, because boundary is matter of fact.
2. A judge is not bound to charge on all the points in a case; he may be silent if he will, unless called on by one of the parties to express his opinion on a point of law; but where he passes over one point, which is preliminary, to get at another, which could not fairly arise until the first is disposed of, it is error.
TRESPASS quare clausum freigit, tried before Norwood, J. The plaintiff proved himself in possession of the land in dispute, represented on the annexed diagram by the letter H, and that the defendant entered upon it and pulled down his fence.
Gaston for defendant.
The defendant justified under a patent granted to Malcolm Clarke, in 1754, for land described as follows: "Beginning at a red oak in Gilbert Pattison's corner, thence along said Pattison's line N. 45 E. 206 poles to a pine, thence N. 45 W. 197 poles to a stake, thence S. 45 W. 114 poles to a small white oak on the river, thence down the river to the place of beginning," and regularly deduced title from the patentee, through his father to himself, for the same land.
The plaintiff then produced a patent granted to Gilbert Pattison (92) in 1740, for land described as follows: "640 acres lying and being in the county of Bladen, on the northeast side of the Northwest River, beginning at a Spanish oak on the river bank, below Deep Water Island, at the upper corner of Nathaniel Linglie's land, thence by the said Nathaniel's land, N. 45 E. 85 chains to a stake, thence N. 45 W. 80 chains to a stake, thence S. 45 W. 70 chains, then along the river to the first station," and showed a regular title down to himself for the same land.
Each party had been in possession under their respective patents from the date thereof; but as to the part in dispute there was no direct proof of actual possession prior to the year 1806, at which time the defendant's father was in possession, and continued so until 1819, when defendant's father and plaintiff having disputed about the right of possession, it was referred to arbitrators, who awarded the land in dispute to plaintiff, who thereupon went into possession and has since so continued.
The principal point in the case was whether the upper corner of the Pattison patent was at F or D; the plaintiff contending for D and the defendant for F. Plaintiff also insisted that if he had a possession anterior to 1806 of twenty-one years, it made good his title under the act of 1791, although the upper corner of Pattison's patent might originally have been at F.
The testimony as to the lines C D and F G was that both were run in 1819, and at that time were both found to be forty-six years old, and on the line C D at the point E a stake and pointers were found corresponding in date with the trees on C D and F G. If the Pattison patent were run according to course and distance, it would not extend to the lines B C or F G.
, SEE 10 N.C. 52.]
The jury were instructed that they were not at liberty to depart from the course and distance of the Pattison patent, after leaving (93) Linglie's line, except to pursue some old marked line, which they believed corresponded with the date of the Pattison patent, and was the line actually run when the land was located, as the only description in that patent was course and distance. And also, that the plaintiff, in making out title, under the act of 1791, must show that he had been in possession for twenty-one years, under known and visible lines and boundaries, and that, in so doing, he would be restricted to the first marked line, viz., F G, unless they believed there was another line which was the true one; and that in the present case it was the opinion of the court that the plaintiff could not claim beyond the line F. G. Verdict for defendant. A motion for a new trial was made and refused; judgment, and appeal.
There were adjacent tracts which appeared from the plat in the case to be conterminous with the Pattison grant, but the calls of those adjacent grants were not given.
In our exposition of the boundaries of a grant, or a conveyance of lands, we very properly say that marked trees or lines, being more certain than courses and distances, shall control them. This the presiding judge recognized as law; but the effect of his charge, although he may not have designed it, is to require proof direct of these facts, whereas, like all facts, they may be inferred from other facts if the fact proven be relevant to the fact to be inferred. The facts set forth in the record show a long and continued possession up to lines variant from those described by the courses and distances called for in the grant, and from the plat accompanying and forming a part of the case these lines were recognized as the lines of the patent by several adjoining patents. This latter fact does not very distinctly appear, for the calls of the latter patent are not given; but they are laid down on the plat as bounded by such lines. These facts pointed to something which controlled the courses and distances of the grant. Whether they proved that marked trees were once there is an inference of fact which belongs to the jury. All that the court can say is that they are relevant to such an inference and that the jury may, if they think proper, make it. If such was not the law, most of our patents would change their locality as our marked trees decayed and our proofs direct of their having once (100) stood there were lost. I think that there should be a new trial, the judge not having called the attention of the jury to this point; not that there should be a new trial because the judge did not charge on any or all the points in a case; he may be silent if he will unless called on by one of the parties to express his opinion on a point of law. But where he passes over one point to get at another, and where the point passed over (as in this case) is preliminary to the one passed to, there it is error; for the latter point could not arise until the prior one was disposed of; that is, in this case the jury could not lay down the patent by course and distance if there were originally marked lines and trees, to which circumstance the evidence pointed. I am very far from saying that here was evidence sufficient to prove that there were once marked lines; it is not my province. All that I say is that there was enough to leave it to a jury. Cited: Norcum v. Leary, 25 N.C. 54; Icehour v. Rives, 32 N.C. 259; S. v. Rash, 34 N.C. 386; S. v. Langford, 44 N.C. 444: Boykin v. Perry, 49 N.C. 327; Murray v. Spencer, 88 N.C. 360; Brown v. House, 118 N.C. 883.
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