Tallassee Power Co. v. Savage 170 N.C. 625

HoKB, J.,

after stating the case: Among the established rules governing the law of boundary in this State, it has been held:

a. That what are the termini or boundaries of a tract of land, a grant, or deed, is a matter of law; where these termini are is a matter of fact. The court must determine the first, and to the jury it belongs to ascertain the second. Whei'e there is a call for natural objects, and course and distance also given, the former are the termini and the latter merely points or guides to it, and, therefore, when the natural object called for is unique or has properties peculiar to itself, course and distance are disregarded, but where there are several natural objects equally answering the description, course and distance may be examined to ascertain which is the true object, for in such case they do not control a natural boundary, but only serve to explain a latent ambiguity. This *628position was so stated by Henderson, J., delivering the opinion in Tatem & Baxter v. Paine & Sawyer, 11 N. C., 64, and has been approved and upheld in numerous decisions of the Court. Lumber Co. v. Bernhardt, 162 N. C., 460, 464; Lumber Co. v. Hutton, 152 N. C., 537; 159 N. C., 445; Sherod v. Battle, 154 N. C., 346; Mitchell v. Welborn, 149 N. C., 347; Whitaker v. Cover, 140 N. C., 280; Bonapart v. Carter, 106 N. C., 534; Com. v. McCrary, 48 N. C., 496, and many other cases.

b. Where a call of a grant or deed is along an ascertained line or natural boundary to a known or established terminus or corner, and said line or natural boundary will not reach the designated point, the usual rule for locating such a description is to run the line of the description as far as it will go, or to the nearest point to the corner called for, and then a direct line to such corner. The case of Shultz v. Young, 25 N. C., 385, is in illustration of the position, and the general principle was approved in the recent case of Boyden v. Hagaman, 169 N. C., 204.

In Shultz's case it was held: “Where part of the description of the boundary of a tract of land, contained in a grant, was from a certain point ‘south with A.B.’s line 310 poles to C.D.’s old corner,’ and A.B.’s line did not reach O.D.’s corner, nor ran in the direction towards it, but at the expiration of the 310 poles on A.B.’s line you had to run nearly at right angles to arrive at O.D.’s corner: Held, that you must run on A.B.’s line 310 poles and then a straight line to C. D.’s corner, as by. doing so you would best conform to the whole description of the deed, though you would ran two lines instead of one called for.” And Gaston, J., delivering the opinion, among other things, said : "Prima facie a call in a grant for one terminus to another is understood to mean a direct line from the former to the latter point. But assuredly there may be accompanying words of description which will indicate that the line is not to be a direct line. Thus it is of ordinary occurrence that when the call is with a river or creek from one terminus to another, the river or creek, however crooked its direction or numerous its courses, if it will carry you to the proposed terminus, must be followed throughout. Nor could there be any difficulty in holding that if the call were for a county line or the line of another tract, or a marked line, such line, however sinuous or indirect, if it ended at the terminus called for, must be faithfully followed. In these cases, and cases like these, the whole of the description of the thing granted is obviously consistent, and every part of it by this construction receives its full effect. You go from one terminus to another, and you go by the guide which you are directed to follow. But when the terminus cannot be reached merely by following the mode pointed out in the description, the question occurs, Shall this mode be wholly disregarded or shall it be observed so far as it is represented as leading to the terminus, and then to be relinquished for a direct line to the terminus? Herein it appears that the law distin*629guishes between tbe degrees of certainty wbicb different descriptions bold forth. If tbe description be one by course and distance only, it is clear tbat sucb description is disregarded, and tbe line is in law a direct line from one point to tbe other. But if it be by permanent natural boundary, tben tbe description is regarded as sufficiently certain to require tbat it should be respected, and tbe line must pursue tbat description so far as it conducts towards tbe terminu.s. This is fully established in Sandifer v. Foster, 1 Hay., 237, wbicb is always referred to as a leading authority on tbe question of boundary.”

c. Again, it is tbe recognized position “Tbat in determining tbe boundary of land none of tbe calls must be disregarded when they can be fulfilled by any reasonable way of running tbe lines, wbicb will be defeated only when necessary to give effect to tbe intent of tbe parties as expressed in tbe instrument; a position upheld in Bowen v. Lumber Co., 153 N. C., 366; Miller v. Bryan, 86 N. C., 167; Clark v. Wagner, 76 N. C., 463; Long v. Long, 73 N. C., 370; Shultz's case, supra.

Eeferring again to tbe last case, Judge Gaston, speaking to tbe rule, said: “Now, independently of tbe peculiar respect wbicb natural boundaries command with us, this decision is proper on general principles. By following tbe line referred to in tbe description, so far as it leads towards tbe terminus or is expressly directed, tbe call for tbe terminus is not disregarded. Tbe terminus is still reached, though not reached by tbe direct line wbicb would have been presumed to be intended bad tbat call been the only description. But by running a direct line to tbe terminus, a part of tbe description, wbicb is perfectly intelligible and wbicb was assuredly designed to aid in ascertaining tbe thing granted, is wholly rejected. It is a leading rule in tbe construction of all instruments tbat effect should be given to every part thereof; and in expounding tbe descriptions in a deed or grant of tbe subject-matter thereof they ought all to be reconciled, if possible, and as far as possible. If they cannot stand together, and one indicate tbe thing granted with superior certainty, the other may be disregarded as a mistaken reference. But so long and so far as they may stand together, each of them may be considered as declaring tbe intent of tbe parties.”

In further illustration of these principles, and on facts more directly relevant to tbe case presented in tbe record, it has been several times held in this State, and tbe position is in accord with authoritative decisions elsewhere, tbat where a call of a deed is from an ascertained or fixed point on a natural water-course, a river or well defined creek or swamp, “thence up or down tbe same,” tbe correct method of location, as a general rule, is tbat tbe line follows tbe stream to next point called for, if tbe same is placed on tbe stream. McPhaul v. Gilchrist, 29 N. C., 169; Rogers v. Mabe, 15 N. C., pp. 180-194; Smith v. Auldridge, 3 N. C., 382; Hartsfield v. Westbrook, 2 N. C., 258; Brown v. Huger, *63062 U. S., pp. 305-320-321. Or if near it and the stream, to the nearest point and then to the corner indicated.

In Rogers v. Mabe the call was “thence west up the river to a stake,” and it was held that the line must pursue the course of the stream, and Ruffin, G. J., speaking to the question, said: “The Court considers it settled upon authority that up the river is the same as along the river, unless there be something else beside course and distance to control it. In Hartsfield v. Westbrook, 2 N. C., 258, Thence down the swamp’ was held to mean along the swamp. In that case no course was given, and for that reason the argument was that a direct line from the comers called for in the deed was the boundary; but it was held otherwise. But in Smith v. Auldridge, 3 N. C., 382, the description was, Thence 50 degrees east, down the creek to a white oak,’ and the question was whether a straight line from the white oak to the preceding corner was the boundary, and it was held the former. We believe these cases have since governed many others,” etc.

In Hartsfield v. Westbrook, on a call from a poplar in a swamp thence down the swamp to the beginning, held that the swamp and not a straight line from the poplar to the beginning is the boundary.

In Brown v. Huger, supra, the Court, speaking to this question, said: “The citation from the treatise by Angelí on Water-courses fully declares the rule to be that where a line is described as running in a certain direction to a river, and thence up or down with the river, those words imply that the line is to follow the river according to its meanderings and turnings, and in water-courses not navigable must be ad medium filum aquceJ Upon a question of boundary, in the case of Jaclcson v. Low in the 12th of Johnson’s Reports, 255, in ejectment, the Court, in construing a provision in a deed in these words, “leading to the creek, and thence up the same to the southwest corner of a lot,” etc., say: .“There can be no doubt but this lot must follow the creek upon one of its banks or through the middle. This description can never be satisfied by a straight line. The terms ‘up the same’ necessarily imply that it is to follow the creek according to its windings and turnings, and that must be the middle or center of it.”

It is true that in the case of Rogers v. Mabe, Ruffin, C. J., after, stating the general rule to be that “up the river” is the same as “along the river,” proceeds as follows: “These words might possibly be controlled by the call in the grant for a line of marked trees or a visible and permanent marked corner, as a stone or tree marked and identified and not standing on the river, as that might show they were used only to denote the general direction of the line,” etc.

While this addenda, made only by way of suggestion and in very hesitant language, might, in exceptional cases, be allowed to prevail where a line of trees, as shown, marked, identified, and called for, and *631necessarily drawing tbe boundary away from tbe river, tbe suggestion may not be beld for law where tbe line was not run or marked, and tbe only diverting fact is tbe existence of a corner standing away from tbe stream and not over a hundred yards from it.

Tbe testimony here shows that tbe land along tbe river was a steep mountain-side, very rugged, and tbe line was never run. Tbe disputed corner was placed on a cliff, about a hundred yards out from tbe river, established by tbe jury at (1), and we find nothing to show that tbe course called for in the grant would have reached this comer. It is extremely probable, from a perusal of tbe testimony, that it was only intended to indicate tbe general course of tbe stream at tbe point of departure, and so far as tbe course is concerned, tbe call seems to be without significance one way or tbe other on tbe true location of tbe disputed line.

Under tbe conditions presented, a proper application of tbe principles stated is, in our opinion, against tbe conclusion of tbe court, and, on tbe facts admitted in tbe record, and established by tbe verdict, there should be a verdict entered in favor of defendant. Tbe call being from a known point on tbe river, “thence S. 83 W. 260 poles down tbe river to a spruce pine on a cliff,” this pine having been fixed by tbe jury at (1), tbe correct method of locating tbe grant is to run with tbe river to a point opposite (1), and thence a direct course to tbe pine at (1), inclosing tbe land in dispute. Such a position gives full recognition of tbe preference which tbe law ordinarily gives to natural objects. It takes account of all tbe calls of tbe grant which are ascertained and established, and reaches tbe corner as established by tbe jury, according to tbe rule approved in Boyden v. Hagaman, Shultz v. Young, and other eases.

There is nothing in tbe opinion of Bonapart v. Carter, 106 N. C., 534, that in any way militates against tbe disposition made of tbe present appeal. In Bonapart’& case; on a call “Beginning on tbe side of Gallon Greek at a small oak, corner of John Edwards,” tbe Court beld that it was open to defendants to show that tbe beginning corner referred to, a small oak, John Edwards’ corner, was 300 yards from tbe creek, tbe present Chief Justice laying down the rule that tbe reference to tbe creek was not a call of tbe boundary, but merely a description of tbe locality of tbe beginning point, definitely described as “a small oak, John Edwards’ corner.” And tbe same principle was more recently applied in Lumber Co. v. Lumber Co., 169 N. C., 83, Associate Justice Walker delivering tbe opinion.

For tbe reasons stated, we are of opinion there was error in tbe judgment as renderéd, and that tbe same must'be

Eeversed.

*632Clare:, C. J.,

dissenting: Tbe call in this case, “tbence S. 83 W. 260 poles down the river to a spruce pine on a cliff,” is clear and unambiguous. This pine has been fixed by the jury at a point on the cliff 118 yards from the river bank.

The words “down the river” do not mean “with” the river, which bends and meanders. If those words were to control course and distance, the pine on the cliff would not be reached. The cardinal principle is that the more certain direction should be followed, Baxter v. Wilson, 95 N. C., 137, to wit, the line should follow the course, “S. 83 W.,” and the distance, “260 poles,” to the “spruce pine on the cliff” which the jury have fixed. Following this course and distance to the identified pine, the directions of the deed would be obeyed in every particular; whereas, to follow the meanderings of the river is in contradiction of the course as given and would not tally with the distance specified and would not reach the corner named. The words “down the river” were not meant to overthrow and disregard course and distance, but merely to indicate that the direction was “down the river” and not up the river. Besides, to substitute the river as a boundary when it is not called for would not only change the course and lengthen the distance, but would require the creation by the Court of a new line from some indefinite and arbitrary point on the river bank, “118 yards to the spruce pine on the cliff.”

The course and distance and the general direction and the spruce pine on the cliff, being the more certain description, should be followed, and we should not substitute for it the meanderings of the river with changing courses and a longer distance and calling for the intercalation of a new line from an uncertain point on the river to the identified corner, “at the spruce pine on the cliff.”

It was in evidence, and not controverted, but adopted as true by both parties, that the corner on the spruce pine at' “C,” and at the spruce pine on the cliff at fig. 1, were 'established and marked as such by the survey of the entry upon which Grant No. 3487 was issued, but that the line between these points was not actually run. Beginning at C, the call is “then S. 83 W. 260 poles down the river to a spruce pine on a cliff.” Both spruce pines and the cliff are identified and called for. Then the boundary is indicated by course and distance, “S. 83 W. 260 poles.” The river is not called for as a boundary, and the line does not specify “with” the river, but merely that the course and distance and the spruce pine on the cliff are in the direction of “down the river.”

In Graybeal v. Powers, 76 N. C., 71, the Court lays down the rule: “Where two corners are established, and the course and distance will not connect them, then the line between them must be run straight, making as small departure as may be from the course and distance called for in *633tbe grant.” Tbis rule bas been repeatedly approved, and as late as Lumber Co. v. Bernhardt, 162 N. C., 466.

Tbe learned judge followed tbis rule, and be is supported also by all tbe evidence in tbis case. It appears that tbe plat of tbe survey upon wbicb tbe grant was issued bas a straight line running from tbe spruce pine at 0 to tbe spruce pine on tbe cliff at fig. 1. Tbe course of tbe river is not a straight line. Tbe plats have always been held competent evidence, and they are now expressly made so by Eevisal, 1596. Tbe witness Wilson testified that tbe line between tbe two spruce pines was not run, but that tbe two spruce pine corners were established and marked at tbe comers, and that a straight line from one spruce pine to tbe other would cut twice across tbe river, wbicb here makes a bend, and tbe surveyor said that tbe enterer wanted tbe falls and a straight line between tbe two corners so as to cross tbe river and get tbe falls if be could; that bis idea was to run a straight line between tbe two spruce pines, as that would cross tbe river, wbicb be wanted to do if be could. He is corroborated by tbe entry plat, wbicb shows a straight line.

In Sandifer v. Foster, 2 N. C., 237, tbe call was “thence S. to a white oak, thence along tbe river.” In Whitaker v. Cover, 140 N. C., 280, and tbe cases cited therein, tbe calls were “along” tbe line of another tract, “thence with tbe river,” “with tbe course of tbe swamp,” etc. These are very different from tbis case. Here there i.s no call “along tbe river” nor “with tbe river” nor “with tbe meanderings of tbe river,” but there is a straight line called for between two spruce pines wbicb is platted on tbe survey attached to tbe grant as a straight line, and there is tbe declaration of tbe surveyor that tbe enterer desired a straight line in order that be could cross tbe river so as to get tbe falls, and tbe further fact that tbe lower corner is not on tbe river, but some distance from it. In Rogers v. Mabe, 15 N. C., 180, tbe call was “up tbe river to a stake.” There being neither fixed corner nor course and distance (as in tbis case), tbe Court held it meant “along tbe river,” of course.

It would seem that tbe finding of tbe jury and tbe charge of the court are in accordance with tbe law and tbe evidence.