Cutts v. Casey , 271 N.C. 165 ( 1967 )

155 S.E.2d 519 (1967) 271 N.C. 165

C. H. CUTTS
v.
S. Worth (Wirt) CASEY and wife Martha B. Casey.

No. 198.

Supreme Court of North Carolina.

July 24, 1967.

Wyatt E. Blake, Burgaw, and George Rountree, Jr., Wilmington, N. C., for plaintiff appellant.

Corbett & Fisler by Leon H. Corbett, Burgaw, for defendant appellees.

PARKER, Chief Justice.

A motion to nonsuit presents the question whether the evidence considered in the light most favorable to plaintiff, is sufficient to be submitted to the jury. Walker v. Story, 256 N.C. 453, 124 S.E.2d 113. Discrepancies and contradictions in plaintiff's evidence are for the jury, not the court. Clinard v. Security Life & Trust Co., 264 N.C. 247, 141 S.E.2d 271. Plaintiff is entitled to every reasonable inference to be drawn from his evidence. Pinyan v. Settle, 263 N.C. 578, 139 S.E.2d 863. In an action for the recovery of land and for trespass thereon a denial by defendant of plaintiff's title places upon plaintiff the burden of proving title in himself and the trespass of defendant. Day v. Godwin, 258 N.C. 465, 128 S.E.2d 814; Tripp v. Keais, 255 N.C. 404, 121 S.E.2d 596; Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786; Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759.

Where title to land is in dispute, claimant must show that the area claimed lies within the area described in each conveyance in his chain of title and he must fit the description contained in his deed to the land claimed. Day v. Godwin, supra; International Paper Co. v. Jacobs, 258 N.C. 439, 128 S.E.2d 818. The determination of what the boundaries are is a question of law for the court. The location of the boundaries on the ground is a factual question for the jury. Batson v. Bell, 249 N.C. 718, 107 S.E.2d 562; Moore v. Whitley, 234 N.C. 150, 66 S.E.2d 785.

Rodman, J, said in Batson v. Bell, supra:

"The location of the boundaries of a parcel of land should be determined by following the directions and in the sequence given in the conveyance to each designated corner. If a particular corner is unknown and cannot be determined by adhering to the directions in the sequence specified, it is permissible to go to a subsequent known or established corner and by reversing the direction fix the location of the unknown corner. This backtracking is permissible only because it permits the location of an otherwise unknown corner."

The fifth headnote in our Reports correctly summarizes the decision in that case:

"Plaintiffs introduced in evidence their grant which called for the northern line of the `William B. Sidbury grant.' its southern boundary, and introduced evidence tending to locate the northern line of the `William B. Sidbury grant.' Held: Plaintiffs had introduced evidence sufficient to permit the jury to find the northern line of that grant as their southern boundary, notwithstanding that this boundary would almost double the northsouth line as called for in plaintiffs' grant and notwithstanding the absence of testimony that the William B. Sidbury line located by the witnesses was the same line called for in their grant, there being no evidence that the line was not in fact the line referred to in their grant."

The parties stipulated that plaintiff and defendants claim title to the property in dispute from a common source, Jesse W. Batson. Plaintiff introduced in evidence copy of land grant #1696 issued to Jesse W. Batson on 20 April 1859. This grant contained the following description:

"Beginning at a stake, William B. Sidbury's corner on the sound; running thence with said Sidbury's line across the banks South twenty-five East sixty-six poles to a stake at the edge of the Ocean, thence with the edge of the ocean North fifty-three, East one hundred and seven poles to Frederick Rue's line; thence with Rue's line North twenty-five, West eighty-eight poles to a crooked creek, thence with the meanders of said creek to the Beginning."

The Batson grant is located by reference to the Sidbury and Rue lines. The Sidbury grant, a copy of which was also introduced in evidence by plaintiff, is for the following described land:

"Beginning on a dead cedar at the East end of a hammock near Cockle Creek Pond, thence South twenty-three East fifty poles to a stake, thence South fifty, West two hundred and sixty poles to a stake between the Hammock and the Atlantic, thence North twenty-three West one hundred and sixty poles to a stake in the Sound, thence to the Beginning."

The Sidbury grant was dated 4 January 1845. Plaintiff also introduced in evidence copy of a grant to Frederick Rhue dated 18 November 1854 containing the following description:

"Beginning at a stake at Cockle or Crooked Creek landing on the sound side, then south thirty-five east ninety two poles to the Ocean, then along the ocean North Fifty East two hundred poles to a stake in the ocean, then North thirty five West ninety two poles to a stake in the sound side, then with the sound to the Beginning."

These three grants relate to land on Topsail Island. The Batson grant is located between the Sidbury grant to the southwest and the Rhue grant to the northeast. The southwestern boundary of the Rhue grant is stipulated by the parties and is agreed to as the northeastern boundary of the Batson grant. The southwestern boundary of the Batson grant is the same as the northeastern boundary of the Sidbury grant. The location of this boundary is one point of contention.

On 1 August 1879 J. W. Batson and his wife executed a deed to Milly Bishop conveying a portion of his land described as follows:

"Beginning at a stake Vashti Atkinson's corner in the Sound running thence with said Vashti Atkinson's line across the banks south twenty five East sixty six poles to a stake at the edge of the ocean, thence with the edge of the ocean, north fifty three East fifty three poles to a stake, thence North twenty five west eighty eight poles to the sound, thence with the meanders of the sound back to the Beginning."

Defendants' claim is based upon a deed from the heirs of Milly Bishop conveying a portion of this tract. The location of this tract is in dispute.

On 21 January 1956 summons was issued in a Petition to divide the lands of Jesse W. Batson, deceased. The Petition sought a division of the land described in the original Batson grant except for the portion conveyed to Milly Bishop. In the course of this special proceeding the remainder of the Batson grant was divided into twelve lots beginning with number one at the southwestern boundary of the Rhue grant. These lots were assigned to the heirs of Jesse W. Batson and to one S. G. Blake who had acquired an interest in the land.

In the course of the above division of lands a map was prepared showing the twelve lots assigned. Lot number three was assigned to the heirs of Levi Batson and subsequently conveyed by these heirs and others to plaintiff. The description in plaintiff's complaint is to lot number three of this division.

As in Batson v. Bell, supra, plaintiff offered evidence from which the jury could find the location of the boundary between the Batson and Sidbury grants. Although placement of this boundary at the location supported by plaintiff's evidence will result in making the ocean boundary of the Batson grant more than twice the length called for in the grant in order to reach the Rhue boundary, this will not prevent such placement. Where there is a conflict between course and distance and a fixed monument, the call for the monument will control. An established line of another tract is such a monument. Batson v. Bell, supra; Coffey v. Greer, 241 N.C. 744, 86 S.E.2d 441.

Plaintiff introduced a copy of a document which divided some of the lands contained within the Sidbury grant. This division allotted certain described lands to Amos Atkinson and wife. Plaintiff produced exhibits and testimony of witnesses that the Vashti Atkinson named in the Milly Bishop deed was the daughter of William B. Sidbury and the wife of Amos Atkinson, that the southwestern boundary of the Milly Bishop tract was the northeastern boundary of the Vashti Atkinson division and that the northeastern boundary of the Vashti Atkinson division was the same as the northeastern boundary of the Sidbury grant and consequently the southwestern boundary of the Batson grant. He introduced evidence of the location of the beginning point of the Vashti Atkinson line and of the Sidbury line and consequently of the Batson grant. His evidence tends to locate the southwestern boundary of the Batson grant and to place the Milly Bishop tract in that portion of the Batson grant rather than in the northeastern portion near the Rhue boundary as contended by defendants. If the southwestern boundary of the Batson grant is established, the remaining boundaries are settled. The ocean and the sound form the southeastern and northwestern boundaries, and the Rhue line is stipulated as the northeastern boundary.

Defendants admit in their answer that they were constructing a building on the described tract of land. Therefore, if plaintiff is found to be the owner of the land in controversy, trespass by defendants is established.

The pleadings, exhibits, and evidence of the plaintiff provide a sufficient basis for the Court to determine the boundaries of the Batson grant and of the land described in subsequent conveyances in plaintiff's chain of title. There is some evidence from which the jury could find that plaintiff acquired the tract of land in controversy through a connected chain of title. Further, there is some evidence from which the jury could locate the boundaries of this disputed tract on the ground and within the original Batson grant. International Paper Co. v. Jacobs, supra; Batson v. Bell, supra.

Therefore, the judgment of nonsuit is

Reversed.