Brown v. Hodges , 232 N.C. 537 ( 1950 )

61 S.E.2d 603 (1950) 232 N.C. 537

BROWN et al.
v.
HODGES et al.

No. 308.

Supreme Court of North Carolina.

November 1, 1950.

Trivette, Holshouser & Mitchell, Boone and North Wilkesboro, Burke & Burke, Taylorsville, for plaintiffs appellees.

Bowie & Bowie, West Jefferson, Higgins & McMichael, Winston-Salem, for defendants appellants.

WINBORNE, Justice.

The defendants, appellants on this appeal, in the first instance, assign as error, and properly so, the rulings of the trial court in permitting plaintiffs to offer, and the jury to consider, parol evidence tending to vary the calls for, and with the highway as contained in the description of the land conveyed in the deeds under which both the plaintiffs and the defendants claim. And, too, upon the competent evidence and stipulation of parties shown in the record on this appeal error is made to appear in the denial of defendants' request for peremptory instruction as prayed.

"A deed is construed by the court, not by the jury. What land by its terms it was intended to cover is just as much a matter of law as what estate it conveys",—Ruffin, J., in concurring opinion in Reed v. Shenck, 14 N.C. 65. And it is settled law in this State that, in processioning proceedings to establish a boundary line, which is in dispute, what constitutes the dividing line is a question of law for the court, but a controversy as to where the line is must be settled by the jury under correct instructions based upon pertinent evidence. Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440, and cases there cited, and others.

But if the court declares what the boundary is, and the location of this boundary is admitted, the whole resolves itself into a question of law. Miller v. Johnston, 173 N.C. 62, 91 S.E. 593.

The same principle would apply when the location of the declared boundary is uncontroverted by evidence.

It is also a well settled rule in questions of boundary that course and distance govern unless there be in the deed some more certain description by which one or both may be controlled. The terminus of a line must be either the distance called for in the deed, or some permanent monument which will endure for years, the erection of which was cotemporaneous with the execution of the deed. Reed v. Shenck, supra; Gause v. Perkins, 47 N.C. 222; Hill v. Dalton, 140 N.C. 9, 52 S.E. 273. A stake is not such monument. A stake called for in a deed to indicate a corner is too lacking in stability and fixedness to serve as monument for that purpose. Clark v. Moore, 126 N.C. 1, 35 S.E. 125. Stakes, as aptly stated by Hall, J., in concurring opinion in Reed v. Shenck, supra, "speak more of locality, to be sure, than floating feathers on the water, but they are as unfit to be boundaries of land".

Hence, oral evidence of the erection of a stake as a corner, or oral evidence that a line is surveyed along a line of stakes, contemporaneously with the execution of a deed, is not admissible to control the course and distance or the natural boundary called for in the deed. Reed v. Shenck, supra; Gause v. Perkins, supra.

Moreover, "whenever a natural boundary is called for in a patent or deed the line is to terminate at it, however wide of the course called for it may be, or however short or beyond the distance specified". Cherry v. Slade's Adm'r, 7 N.C. 82; Hill v. Dalton, supra; Bowen v. John L. Roper Lumber Co., 153 N.C. 366, 69 S.E. 258.

A highway, though artificial, is of such permanent character as to become a monument of boundary within the principle stated as to a natural boundary, by which course and distance called for in a deed are controlled. Hough v. Horne, 20 N.C. 369.

In the light of these principles, the terminus of the line "thence east 23 poles to a stake in the highway", appearing in the deed to Lookabill, under which plaintiffs claim, is the highway as it existed at the time of the execution of the deed,—regardless of the distance. And the next call "thence north 15 deg. east with the highway 50 poles to a stake in Greene's line", appearing in the said deed, runs with the course of the highway, and terminates at Greene's line as each existed at the time of the execution of the deed, irrespective of the course and distance set out.

Likewise, the terminus of the line "thence west with Greene's line 52 poles to a stake at the highway, Lookabill heirs' corner", appearing as the second call in the deed under which defendants claim is at the highway in Greene's line, as each existed at the time of the execution of the deed. The point reached is the Lookabill heirs' corner, that is, plaintiffs' corner above described, irrespective of the distance specified in the call. And the next call "thence south 15 deg. west with the highway 50 poles to a stake at the highway", appearing in defendants' deed, runs with the highway, and terminates at the highway, as it existed at the time of the execution of said deed, irrespective of the course set out in the call.

Hence the highway, as it existed at the time the said deeds were executed, is the true dividing line between the lands of the plaintiffs and the lands of the defendants. Defendants were entitled to have the trial court so declare. The location of the highway, as it then existed, according to evidence, is not disputed. Hence the location of it becomes a matter of law. Defendants were entitled to have the court so declare.

New trial.