Opinion
(June Term, 1860.)
Where a deed called for "an old line down a bottom to a given point," and there was no evidence as to the old line, but there was conflicting evidence as to two bottoms extending from the point reached to the one aimed at, it was Held not to be error for the judge to leave it to the jury to determine which of the two bottoms was the one called for.
EJECTMENT, tried before Howard, J., at last Spring Term of CARTERET.
Houghton and Hubbard for plaintiff.
J. W. Bryan, Green, and McRae for defendant.
The land claimed by the plaintiff is the area contained between Hunter's Creek, White-oak River, and the lines described by the letters C, D, E, F, G, H, L, M, N, X, O, P, Y, T. The loci in quo are the spaces between V, Z and White-oak River and the triangle O, P, Y, which were proved to be in the defendant's possession at the commencement of the suit. As to the first parcel — the land between V, Z and the river — is
, SEE 52 N.C. 424.]
(552) not deemed necessary to set out the exception at large, for the bill states that it was admitted on the trial that the defendant had seven years possession of it, under color of title, when the suit was brought, which is deemed by this Court a full answer to the exception.
As to the other parcel, it was agreed that M, N, and X were lines established for the plaintiff, and the question was whether the line went from X by O to P, and thence to Y, or whether it ran from X by W to Y; and it was admitted, in the latter case, the triangle O, P, Y, would not be within the plaintiff's title. The call in plaintiff's deed was from M down the bottom with Hill's line to a forked white-oak. There was no evidence as to where Hill's line was, but there was evidence that there was a forked white-oak at Y, and that there was a bottom extending from M by N and X to O; also that there was bottom-land from W to Y, but that between W and X, according to one witness, there was a ridge, through which a ditch had been cut. Some of the witnesses testified that there was a clearly defined bottom all the way from X by W to the forked oak at Y.
The court charged the jury that it was a question of fact, to be determined by them, as to which of the two courses indicated by the bottoms, as described by the witnesses, was the one called for in the plaintiff's deed, and that if they were satisfied it was that described by the lines X, W, Y, the defendant would, as to this piece of land, not be guilty. Plaintiff's counsel excepted.
The jury found for the defendant, and the plaintiff appealed.
It would be easy to show, if deemed necessary, that the first exception to the instruction of the court below is untenable; but as in the subsequent part of the case an admission is made which makes the controversy then on hand immaterial, it is now of no importance to a proper decision of the cause. The instructions excepted to were given in respect to the location of that part of the plaintiff's deed which lies contiguous to the White-oak River. The location (553) in question could only be material in reference to the possession of defendant on that river, to show that at that point in the diagram, between the river and V, Z, he was a trespasser. Now, the admission is that for the land embraced within that diagram defendant had acquired a good title by seven years possession under color, and, therefore, the location of the plaintiff's deed around the land would have been of no avail; for, locate it as you please, the defendant is not a trespasser. If the instruction had been incorrect, it was cured by the subsequent admission.
The second exception is as to the location of another part of the land of plaintiff's deed. The question was whether it covered a certain triangular piece of ground, denoted on the plat by Y, O, P.
After getting to M, which seems to have been a conceded corner, the call of the deed is "down the bottom with Hill's line to a forked whiteoak." And upon the running of this line the controversy turned.
There was no proof as to Hill's line, but there was proof that there was a bottom extending from M in two directions, down to N, X, and O, and down to N, and then off in the direction of W, Y. At the terminus Y there was a forked white-oak anciently marked as a corner. Under these circumstances the court left it to the jury to decide, upon the testimony, which of the bottoms was to be followed, with proper instructions. In this we see no error. It was a question of fact, with testimony on both sides, and was submitted in proper terms to the jury.
PER CURIAM. No error.
Cited: Mason v. Pelletier, 77 N.C. 54; Mason v. Pelletier, 80 N.C. 66; Mason v. Pelletier, 82 N.C. 41.