Mizell v. . Simmons , 79 N.C. 182 ( 1878 )

Bynum, J.

The decision depends on the length and •course of the first line. The beginning ■ corner is upon the south side of the Roanoke river, and is not disputed. The call of the grant is: “ Beginning at the mouth of a gut, supposed to be • Isaac Jordan’s bounds, running ■ along his supposed line, south 300 poles in the pocosin, to or near the lead of Middle or Speller s creek.”

Where the call is for the line of another tract of land, the course and distance must yield to it, provided that at the time of the grant, the line called for was an established line, or capable of being then established. But where there is no such established line at the date of the call, a call for such line must be disregarded, and the course and distance pursued. Carson v. Burnett, 1 Dev. & Bat., 546.

There was no evidence here, other than what appeared in the grant itself, of the previous or contemporaneous existence of an Isaac Jordan boundary, or of any grant, deed, possession, line of corner answering such a description. But the call itself, the “ supposed bounds ” and the “ supposed line ” of Isaac Jordan, clearly indicates that there was then ■no established and known line. It was therefore totally irrelevant to show, that long subsequent to the grant, a line between the beginning corner of the grant and the head •of Speller’s creek, at GB, proved to be the Walling line, was reputed to be the same as the Isaac Jordan line. Course .and distance, is a certain description in itself, and to make it yield to a “ supposed line ” supported by neither deed, possession, nor marked boundaries, would be to make the .more certain yield to the less certain and fallacious, when the rule is that course and distance give way only to something which is more certain.

Laying aside so much of the call as relates to Isaac Jordan’s bounds and line, the real question in the case is,— when the call of a grant is from an established corner on the river, “ south 300 poles in the pocosin, to or near, the Lead of “ Speller’s creek,” the course and distance must prevail, or be controlled by the call “ to or near the head of Speller’s creek.” It will be observed that the term “near”' answers the call of the grant as fully as the word “ to,”' and as it is only comparative ás a description of the terminus of a line, it is vagué, uncertain, and establishes nothing. "We say Neuse river runs near Raleigh, yet it is several miles-distant. So in Cansler v. Fite, 5 Jones, 424, the call was to a Spanish oak “ in or near Richman’s line.” The tree could not be found, and the distance gave out 30 poles short of' Richman’s line. The Court held that the call, “ in or near,” could not control course and distance, and that the line-terminated at the end of the distance, and could not be extended to Richman’s line. Speaking of the term, “ in or-near,” as a definite call, — “ How near,” said the Court, “one-pole or fifty ? Either would fill the description.”

• The same principle is decided in Kissam v. Gaylord, Busb., 116, and Spruill v. Davenport, Ib., 134. Our reports contain many decisions in land cases, and perhaps the legal principles which should govern in the ascertainment of boundaries have been as thoroughly discussed-and settled in North Carolina as in any other State, but we have been unable to find a single case where it has been held that when a deed without other description’ calls for a certain course and distance to an object designated by the alternative words “ to or near,” the mathematical call shall be controlled by such an ambiguous and elastic description. Neither course nor distánce can be departed from, further than the one or the-other is necessarily controlled by other calls which demonstrate that’ the course and distance stated in the deed, were-stated by mistake. To give such an effect to the undeter-minate call, “to or near the head of a creek,” would be to cut loose from all the rules established for the ascertainment of boundaries with the greatest degree of precision and certainty. Literary Board v. Clark, 9 Ire. 58; Harry v. Graham, 1 Dev. & Bat. 76.

To repel the allegation that there was any mistake in the ■•mathematical call by coarse and distance, or that there was .any intention to make the head of the creek, the terminus •of the line, irrespective of distance and course, it was competent to consider all the calls of the grant, and also the •diagram made at the time of the entry and survey, and referred to in the grant, and thus. made a part of it. By the grant and plat annexed, the first call from the river is south ■300 poles to or near the head of Speller’s creek. as before •stated “ then north 95 east 160 poles in the pocosin, then north 330 poles to the Roanoke river, then up the river to the beginning.” Both the plat and grant call for 300 acres ■of land, and by computation, that is the quantity enclosed by the calls of the grant, as run by course and distance ; whereas if the first line should be run to the head of the •creek, instead of being 300 poles, as called for by the grant, it is only 172 poles, and the course, instead of being south, as in the grant, is south 14 east; and the third line, which is 330 poles by the grant, is only 282 poles ; and the quantity of land enclosed is less than 200 acres,, when both the plat and the grant call for 300 acres, and that is the precise amount enclosed by running the course and distance stated in the grant. So that the intent to convey 300 acres is expressed in the grant and demonstrated by the annexed map and calls; and no case can be found where the Courts have permitted the intent of the parties to be disappointed by ■deflecting the line and shortening the distance, to reach a vague, incidental call, no better defined than by the terms ■“ at or near the head of the creek,” which this Court has •declared to be too uncertain to control course and distance.

Where it is clear that if there was a mistake, it was n'ot in the course and distance, but in supposing that there was such a place as the head of the creek, in the neighborhood of the end of the line, there can be no deviation from course and distance. Carson v. Burnett, supra.

It was insisted upon the argument that if the course and distance of the first line were not controlled by the call for the head of the creek, yet that it could not extend across and beyond the creek, but must stop at it. - AVe know of no such rule of construction. The .creek is not a call of the grant. If the distance had given out short- of the creek, the line could not have been extended, to' it; and by the same rule, if the distance extended beyond the creek, the end of the distance is still the true call and the terminus of the line. Upon inspecting the map of the creek furnished to us, it appears that it has several prongs or branches leading into and composing it; some extending above the point designated as the head, and some extending out from below and reaching towards the end of the call in the grant. The more reasonable hypothesis, and the one that avoids much of the confusion, is, that in using the words “ to or near the head,” the surveyor meant to say “ to or near the head waters of Speller’s creek,” as indicating a general description of the terminus of the line and location of the grant, not as controlling course and distance, but pointing out by natural objects, the general direction of the call.

So far we have forborne to mention that the plaintiffs claim under two grants, the second of which lies below, adjoining and along side of the first grant. The only contention in reference to this, respects the second call, which is east to the line of the first, whereas that course would lead directly from the first tract, and the lines would not close so as to include any land. The mistake is so obvious, and so fully corrected by the other calls and the plat annexed, that it presents no difficulty. The Courts will construe east to mean west, to correct a mistake, when the intent of the parties appears, and the means of correcting it are presented. Cooper v. White, 1 Jones, 389; Houser v. Belton, 10 Ire., 358; Campbell v. McArthur, 2 Hawks, 33. So also in -extending the line west instead of east, the course called for in the grant as corrected, is dne west, until the line of' the first grant is reached. By none of the rules of construction can it be made to run north 60 west, to conform to-the theory of the defendants.

It has been often held by this Court, that what are the. termini or boundaries of a deed, is a matter of law) for the Court; but where they are, is a matter of fact for the jury. In our view it was necessary as a matter of fact to ascertain where was the head of Speller’s creek, because as matter of' law, the terminus of the first line of Patent A was at tlie end of the course and distance called for, from the beginning corner. In that we concur in the conclusion of the* referee. We also concur with him that the second call of Patent B must be construed to call west, when the call is east. No exception was taken to the finding of damages by the referee. The rulings of His Honor sustaining the exceptions of the defendants will be reversed, and the judgment of the referee upon the report will be affirmed. The-Court below allowed the referee $125 for his services, and as the allowance was not excepted to, that sum will be added to the judgment against the defendants.

There is error. Judgment reversed and judgment will be rendered here according to the finding of the referee, with the addition of his allowance as indicated.