Opinion
(Decided 6 December, 1898.)
Trespass — Boundary — Course and Distance.
1. The general rule is that from a known or agreed point, course and distance must govern, unless there is some natural object called for in the deed or grant, that is more certain than the course and distance called for.
2. To locate, a line, the original order of survey must be observed and followed; and a positive line cannot be controlled by a reversed survey.
CIVIL ACTION in the nature of trespass to try title to land, tried before Timberlake, J., at December Term, 1898, of the Superior Court of PITT County.
The plaintiff claimed under the John Brinkley grant represented on the map, and it was agreed she was the owner of the land covered (512) by it.
The defendants claimed under the William Smith grant represented on the map, and it was agreed that they were the owners of the land covered by it.
They were adjoining grants, the northern line of the Smith grant being the southern line of the Brinkley grant. The location of this dividing line is the only question in this case — other exceptions being abandoned.
The John Jordan grant is also represented, as it is referred to in both the preceding grants, and was used by both parties in support of their respective contentions — there are discrepancies and omissions connected with the diagram of these grants, but not sufficient to impair its usefulness for the purpose for which it was put in evidence.
The Jordan grant is dated 21 October, 1782 — its survey, 31 July, 1871 — its beginning corner is at V.
The Brinkley grant is dated 21 October, 1782 — its survey, 9 October, 1781 — its beginning corner is in dispute; the plaintiff claims it at H, the defendants say at L.
The Smith grant is dated 6 November, 1784 — its survey 1 August, 1781 — its beginning corner is at A.
The boundary calls of these three grants are reiterated in the opinions, where they may be seen.
The Brinkley grant, though prior in point of date to the Smith grant, refers to it — explainable by the fact that the survey upon which the Smith grant issued was prior to that of the Brinkley grant.
The Smith grant, beginning at A, runs to B, then to C, then to D, then to E, then to F, which are all agreed corners. The line from F, which is the dividing line between the two grants — the Brinkley and the Smith — is in dispute. The call in the Smith grant from F reads: "Thence west two hundred and ninety poles into John (513) Jordan's line." The plaintiff contended that this call should be run just as it reads, and that being so run, according to the evidence it would strike the Jordan line at 44, which would locate the locus in quo north of the Smith, or defendant's grant, and include it inside of the Brinkley, or plaintiff's grant. And the plaintiff insisted that this was a question of law, and that his Honor should so instruct the jury.
The defendants contended that they had shown facts sufficient upon which the jury might find that there was a mistaken call, or an omitted call in the lines of the Smith grant, and that the point in the Jordan line, where the line from F running west 290 poles struck it was a mixed question of law and fact to be determined by the jury upon the whole evidence, under proper instructions from the court. That point, they insisted, was at G.
It was in evidence that to run the dividing line as claimed by plaintiff would disarrange the remaining calls of the plaintiff's grant, and disturb the boundaries of the Jordan grant, recognized by both plaintiff and defendants — that if the Smith boundary lines were reversed, they would follow along the well settled marked lines of Smith and Jordan to the corner G, claimed by defendants as a corner of the Smith grant — that if the dividing line is run from F to G, every subsequent call of the Smith grant from G to A could be run along the line of the Jordan grant — that old marked trees were found in running the calls of the Brinkley grant as claimed by defendants.
After full argument on both sides, his Honor stated that he should
(514)
, SEE 123 N.C. 362.]
(515) hold, that in running the Smith grant that the line would run west from "F," the admitted corner, into the John Jordan line, and that upon all the evidence, it appearing that such a line would strike the John Jordan line at "44," he would instruct the jury that a due west line from F to 44 would be the proper line of the Smith grant.
Defendants excepted.
Verdict finding all issues in favor of plaintiff.
Judgment for plaintiff. Appeal by defendants.
T. J. Jarvis and Bond Fleming for defendants (appellants).
W. B. Rodman and Jones Boykin for plaintiff.
FURCHES, J., delivers the opinion of the Court.
DOUGLAS and CLARK, JJ., dissenting.
On 6 November, 1784, the State granted to William Smith a certain tract of land in Pitt County, beginning at a gum in Beaverdam pocosin and John Jordan's corner, thence south 59 degrees east 240 poles; thence north 20 degrees east 242 poles; thence north 66 degrees west 80 poles; thence north 60 poles; thence north 25 degrees west 120 poles to a pine; thence west 290 poles to John Jordan's line; thence south with Jordan's line 40 poles; thence south 35 degrees east 130 poles; thence south 20 east 40 poles; thence south 10 degrees east 100 poles; thence to the beginning.
That on 21 October, 1782, the State granted to John Brinkley a tract of land bounded as follows: "Beginning at a pine, John Jordan's corner, in the Bee Gum Island; thence north 40 poles to a pine; thence east 240 poles into Matthew Hodges line; thence with his line south 122 poles to a pine into William Smith's line; thence with (516) his line west 240 poles to a pine his corner in Jordan's line; thence with Jordan's line to the beginning." Bee Gum Island is not located, and cuts no figure in the case.
And on the same day, 21 October, 1782, the State granted to John Jordan a tract of land, the second call of which strikes the William Smith grant at its beginning corner; thence calling for an agreed line with William Smith north 42 degrees west 202 poles; thence north 10 degrees east 100 poles; then north 20 degrees west 40 poles; thence north 50 degrees west 130 poles; thence north 86 poles; which carries the Jordan line further north than the intersection of the northern boundary of the Smith grant, as claimed by either party.
There appears to be some inconsistency in the calls and dates of these grants. The John Brinkley grant is dated 21 October, 1782, calling for the line of the William Smith grant, dated 6 November, 1784. But this is susceptible of explanation, from the fact that the Smith survey was made on 1 August, 1781, and the Brinkley survey was made on 9 October, 1781.
The plaintiff is admitted to be the owner of the lands included in the Brinkley grant, and the defendant is admitted to be the owner of the lands included in the Smith grant. This being so, the sole question depends upon the location of the northern boundary line of the Smith grant. The Brinkley grant calling for this line of the Smith grant and thence with it west to Smith's corner on the Jordan line, the boundary line of the Smith grant is necessarily the southern boundary of the Brinkley grant.
(517) This was recognized on the argument as the sole question in the case — the defendant's counsel stating this to be so, and abandoned all other exceptions he had in the record of the case on appeal.
To locate the northern boundary of the Smith grant, it is necessary to start at the beginning corner, which is admitted by both parties to be at A on the map, then to B, then to C, then to D, then to E, and then to F. These points are all agreed to by both parties, including A and F. The call from F is west 290 poles to John Jordan's line, which the plaintiff says is at 44 on the map.
The defendant admits that a due west line run from F 299 poles would strike the Jordan line at 44, as claimed by the plaintiff; and that if this is the correct line, that is, the northern boundary of the William Smith grant, then the plaintiff is entitled to recover.
But the defendant claims that this is not the northern boundary line of the Smith grant, and contends that it runs from F to G. And the plaintiff admits that if this line from F to G is the true boundary line, that is, the northern boundary line of the Smith grant, she is not entitled to recover.
The defendant claims to arrive at the conclusion that G is the proper terminus of the line from F west 290 poles to the Jordan line, by reversing the calls and distances, from the beginning corner at A; or rather, by surveying the John Jordan line, north from A according to course and distance; and the defendant claims that this will show G to be the proper terminus of the west end of the line from F. This contention of the defendant violates all rules of construction, as we are taught to understand them.
The first general rule, to which we know of no exception, is that from a known or an agreed point, course and distance must govern, unless (518) there is some natural object called for in the deed or grant that is more certain than the course and distance called for.
F is the last admitted corner in the Smith grant, and the call from this station is "west 290 poles to Jordan's line." There is no natural object called for to change the course, called for in the grant, as the only natural object called for in the grant is Jordan's line, and this is reached by running the course called for. The distance called for, to intersect the Jordan line at 44 (this being the course of the call), is only 9 poles more than the distance called for in the grant; while the distance from F to G, the point of intersection claimed by the defendant, is 470 poles — 180 poles more than the distance called for in the grant. And when this line of 470 poles reaches G, it strikes the same natural object that it strikes at 44 in running the course called for in the grant. We admit that if the call in the Smith grant had been west 290 poles to Jordan's line, and that line could not have been reached except at G, that the line in that event should go from F to G. But that is not the case. The natural object called for is reached at 44 by running the course called for in the grant, at a distance of only 9 poles more than called for in the grant. But, as has been said, the defendant claims to arrive at the conclusion that G is the point of intersection by reversing the line from A, the admitted beginning corner of the Smith grant, and by running the John Jordan line north from the beginning corner at A.
This cannot be done for reasons appearing in the grant, nor can it be done for legal reasons established by the rules of interpretation in such cases. The physical or mathematical reason contained in the grant is that neither course nor distance is given in the last call (519) for the Smith grant — "thence to the beginning." This makes it physically or mathematically impossible to reverse this line. And as there are no known or admitted corners in the Smith grant, between the intersection of the line running west to the Jordan line, whether at G or at 44, it cannot be reversed.
It cannot be reversed for the purpose of fixing the intersection of the line west from F for legal reasons. The Smith grant was run from A to B, from B to C, from C to D, from D to E, from E to F, and therefore the line from F, and those following, is what are termed a posterior line, and cannot be located by a reversed survey. To locate a line, the original order of survey must be observed and followed; and a posterior line cannot be controlled by a reversed survey. This rule is too firmly established by numerous decisions of this Court to be disputed now. Duncan v. Hall, 117 N.C. 443; Norwood v. Crawford, 114 N.C. 513; Graybeal v. Powers, 76 N.C. 66; Harry v. Graham, 18 N.C. 76.
It is the Smith grant that we are locating, and it is the northern boundary line which is in dispute. This line is not bounded by the Jordan grant, and cannot be located by a survey of that grant. This could not be done if the Smith grant had called for the Jordan line south from the point of intersection, which it does not do. And the call in the Jordan grant for the line of the Smith grant can be no more than a declaration of Jordan that his line runs with Smith's. The Jordan grant calling to run with Smith's grant would be controlled by the Smith grant, and not the Smith grant by the Jordan grant. So it is plain that the Smith grant cannot be located by the Jordan grant.
It is contended (though not by counsel of defendant) that (520) Smith intended to run his line from F somewhere north until he reached a point east of G, and then west to G. This may be so, but if he did we do not know it, and there is nothing in the grant to show that he did. Whatever we may suppose his intentions were, these are but conjectures now. It is certain he did not do it, and we cannot do it for him. Graybeal v. Powers, supra.
By every rule of construction known to us, the dividing line between the plaintiff and the defendant must run from F west to the Jordan line, which is admitted to be at 44. The judgment below must be
Affirmed.