Lumber Co. v. . Hutton , 159 N.C. 445 ( 1912 )

CLARK, C. J., dissenting; BROWN, J., concurring in the dissenting opinion. Trespass to realty. There was verdict for defendant. Judgment on the verdict, and plaintiff excepted and appealed.

The facts are sufficiently stated in per curiam opinion. (446) On a former appeal in this cause, reported in 152 N.C. 544, the facts will sufficiently appear to indicate the purport of the present decision. It was chiefly urged for error in the present trial that the court below had made unwarranted departure from the rulings made in the former opinion, by which the cause should be tried, and more especially in submitting the case on the position that if the "Daniel Moore" line and "Jesse Gragg's line" and the line of John Crisp's own land, called for in defendant's grant and made two of the termini of the lines therein and the boundary of a third, "were known and established lines," they would control the calls by course and distance, also appearing in the grant.

We are of opinion, however, that the objection rests on an erroneous concept of the former decision. It is a settled principle with us in the law of boundary, that, when the line of another tract is definitely called for as one of the termini of a call in a grant or deed and this line is fixed and established, it will control a call by course and distance. Whitaker v. Cover, 140 N.C. 280, and authorities cited. And where the line of another tract is the one called for and is sufficiently "proved and established," the principle applies, whether such line is marked or unmarked. Campbell v. Branch, 49 N.C. 313; Corn v. McCrary,48 N.C. 496. This position was fully recognized on the former appeal, and was well stated by the Chief Justice as follows: "It is true that the general rule is that course and distance must give way to a call for a natural boundary, and that the line of an adjacent tract, if well known and established, is a natural boundary. But this is because such natural boundary is usually considered more certain, being at a fixed and definite place, if ``established and known,' and therefore unchangeable and more likely to be the true call in the deed than course and distance which may, by inadvertence, be incorrectly written down. The reason of the law is the life thereof. Ratione cessante, cessat ipsa(447) lex. The rule of construction which ordinarily prefers the call for the boundary of another tract to course and distance is based upon the reason that the former is usually more certain than the latter, and only applies when the boundary of the other tract is established and well known."

On that appeal, however, a majority of the Court were of opinion that the lines of adjacent tracts, called for and made the termini of two of the lines of defendant's grant and the boundary of a third, to wit, the Daniel Moore line and the Jesse Gragg line, and John Crisp's own line, were not sufficiently established to require or permit the application of the principle, and the calls by course and distance afforded the safer guide to a proper location. On the present trial, additional evidence was offered by defendant tending to show that the Daniel Moore line was a well-known and established line, and there were also additional deeds and testimony offered tending to show that the John Crisp line, referred to and made the last call of defendant's grant, was a well-organized and established line or lines closing the survey and boundary as contended for and claimed by defendant. This additional testimony, tending as it did to show that these lines of adjoining tracts, called for as termini and boundaries of defendant's grant, were sufficiently proved and established, was such as to permit and require that the question of location should be considered by the jury, on the principles referred to, and we find nothing in the charge of the court or in the other features of the trial which gives plaintiff any just ground of complaint. There is no error, and the judgment for defendant is affirmed.

No error.