Parsons v. John L. Roper Lumber Co. ( 1938 )

Seawell, J.

Tbe plaintiff sued to recover damages of tbe defendants for trespass in cutting and removing timber from bis land.

In an endeavor to show tbe ownership of tbe lands in wbicb tbe alleged trespass was committed, plaintiff’s evidence was sufficient, we think, to connect himself, prima facie, with tbe original grant set out in tbe complaint and introduced in evidence. But bis attempt to locate that grant sufficiently well to be of service to him in covering tbe locus of tbe trespass was not so successful.

Tbe grant reads as follows :

“Thomas Parsons 640 Acres

Craven County Dated December 22, 1168

COPY OF GRANT

“311

“THOMAS PARSONS: 640 acres Craven on tbe So. side of Neuse River and on tbe Ws. side of Tornigan Bay Beginning at a pine on tbe So. side of one of tbe prongs of a Creek called Broad Creek and from thence crossing tbe bead of said Creek into tbe main dismal So. 55 Ws. 240 po; then So. 35 Et. 340 po; then No. 55 Et. 240 po; to a pine at tbe marsh above Thomas Nelson’s Hammock then down Tornigan Bay No. 10 Et. 200 po; and from thence to tbe beginning dated 22d December, 1168. ¥m. Tryon.”

It developed during tbe trial that none of tbe trees called for as marking tbe beginning or other corners remain, and there are no vestiges of marked trees at any point of tbe survey. There are certain natural objects wbicb serve to point out tbe location of corners and former landmarks in a general way: A spur of Broad Creek, tbe Great Dismal, Tornigan’s Bay. But these are too remote and the relation too indefinite to mark, with any degree of accuracy, tbe location or point intended. For instance, Nelson’s Hammock is strung along the hay for several hundred yards and is perhaps a mile across tbe bay from tbe point in tbe survey to wbicb it refers. The Great Dismal is a vast area, and the beginning corner may be placed up or down tbe spur of Broad Creek at will. None of the corners, lines, or points on the survey were pointed out by persons who professed to know them, and tbe best that can be said is that tbe polygonal figure representing tbe survey seems to be so placed in relation to the spur of Broad Creek, the Great Dismal, the marsh at Tornigan’s Bay, and Nelson’s Hammock, as to be persuasive of an approximate location.

There was strong insistence on the part of C. T. Parsons, son of the plaintiff, that he had found the proper beginning point by running the last two calls in the deed both ways. But he said he did not know where the beginning was, and as the other calls upon which he depended were not marked, and he did not profess to know them, the information given the surveyor by him must have been arbitrary.

In the opinion of the Court the evidence as to location was insufficient to go to the jury, and since ownership of the lands upon which the trespass was alleged to have been committed was dependent on this, the defendants’ motion for nonsuit should have been allowed.

The judgment is

Eeversed.