Hanstein v. . Ferrall , 149 N.C. 240 ( 1908 )

At the close of plaintiff's testimony, on motion duly entered, there was judgment as of nonsuit under the Hinsdale Act, and the plaintiff excepted and appealed. As we understand, the nonsuit was ordered, because (242) in the opinion of the lower court, the evidence offered as to the location of plaintiff's deed was not sufficient to justify or permit the submission of that question to the jury. The answers of the defendants admit that the plaintiff owned the lot covered by the deed, which is set out in the complaint, and contains in part the following description:

"A certain lot or parcel of land in the town of Clinton, Sampson County, N.C. described as follows: Beginning at a stake on Wall Street, in said town, 27 feet and 6 inches from the N.W. corner of the C. T. Butler lot, on the same street, and runs N. 41 W. about 25 1/2 feet to Sycamore Street; thence with Sycamore Street S. 48 W. 117 1/2 feet; thence S. 41 E. about 25 1/2 feet, etc., the same being the corner lot at the intersection of Wall and Sycamore streets."

And the plaintiff, a witness in his own behalf, testified as to his present brick store built along Sycamore and fronting on Wall Street, among other things, "that the wall of his brick store, now on the lot above the ground, was 7 inches into Sycamore Street; and this infringement on Sycamore Street had been satisfactorily adjusted with the authorities of the town." This evidence of itself would require that the question of location should be passed upon by the jury, for it furnished data from which the second corner called for in plaintiff's deed, the intersection of Wall and Sycamore streets, could be given a physical placing, to wit, at a point 7 inches short of the wall of plaintiff's brick store; for, while the more correct way to locate plaintiff's deed would be to establish the beginning corner "at a point on Wall Street 27 1/2 feet from the N.W. corner of the C. T. Butler lot," and then run according to the course and calls of the deed, in the absence of evidence offered or available as to the placing of this beginning corner, under the description as expressed in the deed, the location could proceed from this second corner if its placing was fixed and determined, the description to be run from this point according to the course and calls of the deed, (243) Lindsay v. Austin, 139 N.C. 463; Duncan v. Hall, 117 N.C. 443, unless a greater certainty of identification could be obtained by reversing the first call and ascertaining the beginning corner in that way, which method is sometimes allowable. Norwood v. Crawford,114 N.C. 513; Dobson v. Finley, 53 N.C. 495.

In the present case the result would seem to be the same, whether the one method or the other were adopted, but in either case the testimony, if believed by the jury, afforded data from which the location of plaintiff's deed could have been legally determined. Again, the evidence tended to show that the lots occupied and claimed by plaintiff and defendants adjoined each other, and both were formerly owned by T. M. Lee, deceased; that said Lee had constructed two wooden store buildings on these lots, and his heirs had conveyed one of these and the corner lot to one J.H. Stevens, who had later conveyed to plaintiff, and the other the heirs had sold to defendant, and the same was held under a bond for title pursuant to the contract of sale; that these store buildings, built so close together that their eaves had the same drip, and the water falling caused one and the same trench on the ground between them, were destroyed by fire, and the plaintiff in preparing to rebuild his present brick store, and, in order to ascertain the correct dividing line between the lots, had measured the distance between the brick pillars of the two stores, which remained standing after the fire, and staked a line midway of this distance and along the middle of the trench caused by the common drip from the eaves of the two stores. That plaintiff had started the foundation of his present store below the ground four inches back from the line indicated, and above the ground had drawn the wall eight inches further back, making the outside of plaintiff's wall above the ground twelve inches back from the line ascertained and marked in the manner above stated.

(244) We are of opinion that this is proper evidence to be submitted to the jury on the question of location, tending, as it does, to show, on the part of the owners and occupants of these lots, recognition of this adopted line and acquiescence in it as the true divisional line between them. The doctrine by which this testimony is held to be relevant to the inquiry is thus stated in 5 Cyc., 940: "Recognition of, and acquiescence in a line as the true boundary line of one's land, not induced by mistake, and contained through a considerable period of time, affords strong, if not conclusive, evidence that the line so recognized is the true line."

And, while such recognition and acquiescence may not, as a rule, justify a departure from the true dividing line when otherwise clearly defined and established, the authorities cited fully justify this statement of the doctrine as applied to the facts presented on this appeal. Davidson v.Arledge, 97 N.C. 172; M. E. Society v. Akers, 167 Mass. 560.

There was error in the order dismissing the action, and the cause will be restored to the docket for trial according to the course and practice of the court.

Reversed.

Cited: Boddie v. Bond, 158; N.C. 206; Gunter v. Mfg. Co., 166 N.C. 166;Jarvis v. Swain, 173 N.C. 13.