Holmes v. . Sapphire Co. , 121 N.C. 410 ( 1897 )

Plaintiff sues for possession of 640 acres of land. His title is denied by defendant. After the introduction of evidence was closed, his Honor being of opinion that plaintiff had failed to locate the lands described in the complaint, the plaintiff took a nonsuit and appealed.

The plaintiff's evidence was a State grant to E. H. Phipps, No. 1695, dated 28 December, 1854, and several mesne conveyances. There were some objections to the reading of these mesne conveyance on the trial, but the case turns on the sufficiency of the grant, No. 1695, to Phipps and the evidence to locate land in dispute.

The description in the grant, No. 1695, was: "640 acres, lying and being in the County of Macon, on the waters of the Toxaway River; beginning at a large chestnut, runs thence S. 25 W. 320 poles to a rock at the headwaters of Thompson River; thence N. 65 W. 320 poles to a stake in a laurel; thence N. 25 E. 320 poles to a stake; thence S. 65 E. 320 poles with Johnson's and Francis' line to the beginning."

T. B. Reed testified: "Sometimes I follow surveying. Was on survey in this case. Found marked chestnut at A; two hacks on it, indicating, in surveying a line tree. Knew William Chandler; he is dead; was 78 years old. He lived for many years near these lands. Some few years ago, and before this suit commenced, Mr. Chandler pointed out this tree to me and said it was a corner of one of the Woodfin surveys; (412) did not say which one. I refer to the chestnut. On this survey we began there, in running the Phipps grant, No. 1695. Did not find any rock at end of first call, which is, `thence S. 25 W. 320 poles to a rock at headwaters of Thompson River.' The head of Thompson River is 2 1/2 miles off from there. There were several Woodfin surveys in this section. Some Woodfin surveys run a good ways, and one some distance off. There are eight or ten Woodfin surveys. I don't know, myself, that there are any other Woodfin surveys in this locality. There is a rock, about the size of a small house, over the ridge, about 23 poles from point where poleage gave out. It is on South (or Thompson) River, side of Bear Pond Ridge. This rock is 2 1/2 miles from headspring of Thompson River. I found a number of large rocks there, but found no rock as large as the one I refer to, and no other rock likely to be called for as a corner or selected as such. The course we ran from the big chestnut (being the first call of the Phipps grant) would not bring us to this rock. The rock is several poles further east, and 23 poles from the point where poleage gave out. I think this chestnut is on Francis and Johnson line."

S.W. Reed testified substantially to the same as T. B. Reed.

This is not an effort to establish boundary lines by course and distance, by marked trees and corners, or by calls for natural objects and the like, but is an effort to identify and locate the first station by evidence. The description in the grant, No. 1695, is not as definite as it ought to be, but if we assume it can be aided by parol evidence in fitting the description to the land, then the only question is, Does it have that effect? It appears to the Court that it does not. It will be observed that the first line leading away from the "chestnut" has no chops or signs indicating a line, nor has the fourth line, returning to the chestnut, any such signs. There is a rule that the station, sought to be (413) fixed, may be found at the cross or intersection of two lines run and measured by reverse bearings, but that can only be when the two lines start out from established or admitted corners. That rule will not help in this case, because the second, third, and fourth corners, both by the grant and the evidence, are more indefinite than the chestnut, which has some marks on it. The boundaries would depend solely on course and distance if the first station (chestnut) could be located. The proof would apply as well to any of the Woodfin surveys as to the one claimed by the plaintiff. It fails to locate or identify any chestnut with reasonable certainty. If the evidence was allowed to locate the first station, that would be making a beginning corner instead of finding one, as nothing is described. Hinchey v. Nichols, 72 N.C. 66.

No error.

Cited: Echerd v. Johnson, 126 N.C. 412; Broadwell v. Morgan,142 N.C. 477.