Summary
In Spruill v. Davenport, 46 N.C. 203, it is said, quoting from Tatem v. Paine, 11 N.C. at p. 71: "What are the termini or boundaries of a grant or deed is matter of law; where those boundaries or termini are is matter of fact. It is the province of the court to declare the first, that of the jury to ascertain the second.
Summary of this case from Sherrod v. BattleOpinion
(December Term, 1853.)
Where a swamp is called for in the description of a tract of land, and the question is left doubtful, which of the three conflicting localities is the proper one, it is error to instruct a jury that they are to seek for the proper locality, by running the course called for, regardless of other considerations.
The call on such a description, for a line running WESTWARDLY, does not necessarily mean a west course.
AFTER the new trial granted in this case, at December Term 1852,(see Busb. Rep. 134,) it came on to be tried again at Washington Superior Court of Law, on the last circuit, before his Honor Judge ELLIS.
Smith and Heath, for the plaintiff.
Moore, for the defendant.
The plaintiff claimed under a grant to Nehemiah Spruill, issued in 1791, the second corner or the boundary of which was admitted to be at E. The call from thence is "westwardly along the said Spruill's line, and Thomas Mackey's line, 300 poles to Greenland Swamp," with various other calls, to the beginning. In submission to the former decision, it was admitted that the three hundred poles gave out at F, and that the line ran thence to Greenland Swamp. The only question then was, what was the location of Greenland Swamp, and how the line in question should be run to reach it. The plaintiff contended that the water-course, marked "the branch," was the Greenland Swamp, called for in the grant, and that the line must run to it from F, by a due West Course along F. W., or to the nearest point of it at X, along F. X. The defendant contended that the Greenland Swamp did not extend above the horse-way, but, if it did, it was the North-eastern fork which runs up to R, and is marked Greenland Swamp. Much testimony was offered by each of the parties, tending to show that his was the proper location of the Greenland Swamp. It was admitted, that if the line from F was run to W or X, it would include the locus in quo, or a part of it, and the defendant would be a trespasser, but not, if it were carried to Z, or to the horse-way, or to R. It was admitted further, that the line F X ran 25 degrees North of West, was three-fourths of a mile long; F W due West, and one mile; F Z 23, degrees South of West, and one mile and a quarter; and F Y 38 South of West, and one mile and a half in length. A line from F to R, it is apparent on the plat, was much shorter than either of the others.
, SEE 46 N.C. 204.]
His Honor charged the jury that, in running the line of the Nehemiah Spruill grant from F, they were to extend it to Greenland Swamp, by first going due West; but if they could not find it in that direction, they should seek for its nearest point, regardless of course; and that the line should be thus extended, even though the Swamp should be found as far as a mile or a mile and a half from F, where the three hundred poles gave out.
Under these instructions the jury found a verdict for the plaintiff. A motion was made for a venire de novo, for misdirection in the charge, which being refused, and judgment given for the plaintiff, the defendant appealed.
There was, we think, an error in his Honor's charge, which no doubt misled the jury to the prejudice of the defendant, and which therefore entitles him to a new trial. The difficulty in the case was the proper location of the Greenland Swamp, called for in the grant, and at what point the line, extended from F, should reach it. There were three distinct portions of the same swamp, each of which the parties respectively contended, was the Greenland Swamp meant in the call of the grant. Which of them was the true one, was a question of fact for the jury, to be decided by the weight of testimony in its favor. In ascertaining this fact, the remarks of Judge HENDERSON, in pronouncing the opinion of the Court in the case of TATEM v. PAINE, 4 Hawks, 71, with a slight alteration, furnished them with a proper rule to guide them to a correct conclusion. "Where natural objects are called for as the termini, and course, and distance, and marked lines are also given, the natural objects are the termini, and the course, and distance, and marked lines, can only be resorted to by the jury to ascertain the natural object; they act as pointers to the natural objects. When the natural boundary is unique, or has properties peculiar to itself, these pointers or guides can have but little effect; in fact, I believe none. When there is more than one natural object in the neighborhood answering the description; that is, having common qualities, then those pointers or guides may be adverted to, to ascertain where the object called for is, or which is the object designated. They do not then, contradict or controvert natural boundary; they explain a latent ambiguity, created by their being more than one object which answers the description.
The error in the charge, in the present case, consisted in giving an undue effect to the term "Westwardly." In the call "thence Westwardly along the said Spruill's line," c., his Honor held, that when the distance of three hundred poles called for in that line, gave out at F, before reaching the Greenland Swamp, the line must be extended, first, due West, to ascertain whether a swamp of that name could be found in that direction. Now, if each of the three parts of the swamp above spoken of were proved to have borne that name, then the part lying directly West of F, was according to the charge, to be taken as the one intended, without any regard to the other circumstances in the case, which, in the estimation of the jury, might otherwise have established another of the three as the object indicated.
The term "Westwardly", with nothing to control it, may perhaps mean West or due West, but it is evident that such is not its precise signification, and hence it is readily controlled by any circumstances, which goes to show that a due West course could not have been intended. BRANDT v. OGDEN, 1 John's, 155. Such is the case here. The call is "Westwardly," along the said Spruill's line." Now, Spruill's line thus called for is not a single straight line running due West, but consists of several lines, as appears by the plat, running sometimes a few degrees to the North and sometimes a few degrees to the South of a due West course. Its direction at its termination at F, pointing towards those parts of the swamp, the one or the other of which the defendant contends, is the true Greenland Swamp. We can see, then, no more reason why the line should not continue on in the same direction, in which it was going at the termination of the distance, in search of the Swamp, as to turn off in a due West course for that purpose. Under all the circumstances of the case, the proper instruction, as it seems to us, would have been, that the jury should find, if they could, upon the weight of the evidence, taking into consideration the other calls of the grant, which was the Greenland Swamp designated and known as such at the time when the grant was issued, and that they should find that to be the true terminus of the line in question. But, if the testimony should be equally strong, to prove that each of the parts of the swamp contended for by the parties, was called by that name, at the date of the grant, and there should be nothing else to determine the question, then they must run the line to the nearest of those parts; and if only two of them were so called, then the nearest of the two. See TATEM v. PAINE SAWYER, before cited, and Chief Justice RUFFIN's opinion in the case of the LITERARY FUND v. CLARK, 9 Ired. 60.
PER CURIAM. The judgment is reversed, and a venire de novo awarded.