Summary
In Stack v. Pepper, 119 N.C. 434, although an argument was (810) made in support of the surface theory, the opinion recognizes the horizontal theory by eliminating from the distance called for in the deed the height of a cliff nearly perpendicular which lay across the line.
Summary of this case from Gilmer v. YoungOpinion
(September Term, 1896.)
Action of Trespass Quare Clausum Fregit — Boundaries — Survey — Presumption as to Mode of Survey — Surface and Perpendicular Measurement.
1. While the surface and not the level or horizontal mode of measurement is generally adopted in surveys, and the general presumption is that a survey of the surface was contemplated by the parties to a deed, yet that presumption prevails only where it appears feasible and reasonable to have pursued that course.
2. Where a line of survey crossed a perpendicular cliff at a place where it could not be climbed, and to give the quantity of land called for by the survey and to take the line to a boundary shown to have been marked in and old survey, it was necessary to exclude the distance up the face of the cliff, it was not error to instruct the jury to exclude it in determining the boundary.
ACTION FOR DAMAGES for alleged unlawful entry upon land and cutting and carrying away wood, tried before Brown, J., at Fall Term, 1895, of STOKES. A verdict was rendered for plaintiff, but judgment not having been entered thereon at that term, judgment nunc pro tunc was entered at Fall Term, 1896, by Hoke, J.
A. M. Stack, J. T. Morehead and Jones Patterson for plaintiff. (438)
W. W. King, A. E. Holton and H.R. Scott for defendants (appellants).
It is a fact generally known and acknowledged that in all of the early surveys of entries, and in most of the latter ones, made in this State, the surface and not the level or horizontal mode of measurement is shown to have been adopted. This is the general rule, and the courts take notice of this fact and presume that lands embraced in grants and deeds were originally measured in that way, both because it is a matter of general knowledge that such has been the custom and because the judicial annals of the State are corroborative of that fact. Duncan v. Hall, 117 N.C. 443. The surveyor testified to this custom as universally adopted by practical surveyors.
While, however, the presumption is generally that a survey of the surface was contemplated and adopted by the parties to a deed, that presumption prevails only where it appears feasible and reasonable to have pursued that course. On the contrary, the courts will not assume that the surveyor and chain-bearers procured ladders and climbed over a rugged boulder or cliff situated as in this instance, but that they adopted practicable methods. It is well known that where surveyors encounter a river at a point where it is lined with rocks rising above the surface, and it proves impassable by ordinary methods, the distance across is determined by making an offset and running up and down from the actual point of crossing, not by climbing over the sides (439) of the rocks. It was not improper for the Court to instruct the jury in this instance that the surveyor, if his testimony was believed, ascertained the distance, and thereby fixed the location of the disputed corner by the correct mode of measurement. The surveyor Shelton testified that if he included the distance from the bottom of the cliff up its perpendicular surface to the top as a part of the 23 3/4 chains called for the disputed land would not be embraced within the boundaries of the deeds under which plaintiff claimed title; but if, instead of measuring up this surface, he walked around and measured from the top of the cliff, the defendant would, under that theory of surveying, be a trespasser. The distance up the cliff could only have been ascertained by letting fall a line from the top to the bottom, as the surveyor was compelled to depart from his course to find a point where it was possible to even climb across it. It is not to be presumed that the State of North Carolina sold to Shober by means of his grant the space represented by the perpendicular surface of this cliff. The original surveyor did not find it necessary to ascent its surface in order to ascertain with accuracy what the State was selling. But very steep mountain sides are often very valuable for timber as well as for agricultural purposes, and when a line crosses a steep mountain or succession of hills the grantee would get from the State, for cultivation, by horizontal measurement, a number of acres largely in excess of that estimated upon the basis of surface measurement. Duncan v. Hall, supra. In the case before us, however, the measurement adopted by the surveyor and sanctioned by the Court gave the grantee, under the operation of the maxim cujus est solum ejus est usque ad coelum, the ownership of the perpendicular cliff, and whatever of minerals, if any were imbedded in it, without robbing the State of the price of a single acre of cultivable land.
Where the elevation of the ground is very different at different (440) points of a line, the grantee may start his lines toward the center of the earth from points nearer to each other than his points of departure would have been by the horizontal measurement, but he will generally acquire title for every acre of surface for which he pays the State.
The undisputed testimony of the witnesses examined tended to show that the succession of deeds constituting plaintiff's chain of title embraced the land in dispute, and that the plaintiff had an actual possession of a part, and a constructive possession over the whole, of the land embraced within the boundaries of these deeds. This is an action in the nature of trespass quare clausum fregit, not in the nature of trespass in ejectment. In order to establish, prima facie, the right to recover, it was necessary, therefore, for the plaintiff to show possession in himself and a trespass upon his possession by the defendant, not, as in ejectment, an adverse occupancy by the latter. If the testimony was believed, the defendant entered upon the land embraced within the boundaries of plaintiff's deeds, as run without estimating the distance up the face of the cliff, and cut and removed timber trees; so that, if the testimony was credible, the locus where the trespass was committed was within the limits of plaintiff's lands, to which he had, prima facie, shown both title and possession, and the plaintiff was entitled to recover at least the nominal damages awarded.
As we understand the case and the argument, the assignment of error that has been discussed is the only one relied upon by the defendant, of which, according to the transcript, he was entitled to the benefit. It ought to be needless to state that the appellate court is confined to the record. There was
No ERROR.
Cited: Gilmer v. Young, 122 N.C. 810.
(441)