Echerd v. . Johnson , 126 N.C. 409 ( 1900 )

The county surveyor, in obedience to the order of court, ran the dividing line between the parties, according to the contention of each, and reported a map of his survey.

The dividing line, as indicated, ran north and south, the plaintiffs' land lying each of it and the defendants' lying west. The issues, (410) contentions of the parties and ruling of the Court appear in the opinion.

There was a verdict for the plaintiff, and from the judgment in his favor the defendant appealed. A copy of the map is subjoined. This is a processioning proceeding under the act of 1893, chapter 22. The line to be located runs practically north and south, the plaintiffs' land on the east side and defendants' on the west side.

After the pleadings were filed with the clerk, an order of survey was made, and the surveyor was ordered to run said line according to the contention of both parties and to report the same with a map to the court. This was done, and on the trial in the Superior Court this issue was submitted: "Is the line on the map, beginning at red 2 and running to red 5, the true boundary line between the lands of the plaintiffs and defendants?" The jury answered, "Yes." A similar issue as to defendants' contention, from blue 2 to blue 10 was submitted, but not answered.

Numerous witnesses were examined and deeds were introduced, including a deed from John Bradburn to Frances Dorset, in 1797, in which this is the description: "Beginning at a large pine tree in Bradburn's line, thence west 160 poles to two small post-oaks." The beginning corner (1 on the map) is agreed to, and the question turns on the location of the "two small post-oaks." The two old stump places, or holes, claimed by the parties are about three and a half poles apart, one noted on the plot red 2 (plaintiffs'), and blue 2 (defendants'). There was evidence tending each way. Defendant asked for this instruction: "That from a known point course and distance must (411) govern, unless there is some natural object called for in the deed that is more certain; and in this case point 1 being admitted and the natural object called for being uncertain, the corner should be at the end of 160 poles west from 1." In lieu thereof his Honor told the jury that the post-oak called for was a natural object, and that the plaintiff claimed that it was at red 2, and the defendant at blue 2 — that there was evidence tending to show that there were two oak stumps, and it was the duty of the jury to find from the evidence which natural object was the proper one, and if they could not from the evidence locate the natural object, then course and distance would govern.

The prayer could not be given, because the jury, upon the evidence, have found and made the natural object certain, which controls, and because the court would have to find as a fact or assume that the natural object could not be located by the jury from the evidence. That has been the province of the jury from a time whereof the memory runs not, and is now considered "familiar learning." The natural object or boundary is not to be found alone by construing the deed. It may be aided by parol proof and by reputation. Huffman v. Walker, 83 N.C. 411; Strickland v. Draughan,88 N.C. 315.

The court decides what the boundaries are, and the jury finds where they are. If the natural object or boundary can not be found or located, course and distance will control. Redmond v. Stepp, 100 N.C. 212.

His Honor instructed the jury that the burden of showing that the red line was the true line (leading from 2 red) was upon the plaintiff,

[EDITORS' NOTE: THE DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE 126 N.C. 254.] and if he had by a preponderance of the evidence satisfied them that that was the true line, they should answer the first issue, "Yes"; and in that event they need not consider the second issue; also if they (412) were not so satisfied, they should answer the first issue, "No."

Holmes v. Valley Co., 121 N.C. 410, cited by the defendant, does not apply. In that case there was no effort to establish boundary lines by course and distance, by marked trees and corners, or by calls for natural objects, but it was an effort to identify and locate the first station by evidence, without any chops or signs leading to or from the place, with an imperfect description in the deed. We have discovered no error in the trial below.

Affirmed.

Cited: Whitfield v. Robeson, 152 N.C. 100.