Cansler v. . Henderson

64 N.C. 469

• Court: Supreme Court of North Carolina
• Decided: June 5, 1870
• Status: Published

Opinion

Dick, J.

The abstract principles of law laid down by his Honor, are substantially correct: Battle’s Dig. Title, Boundary.

The error of his Honor consisted in not applying the principles of law to the case before him. The only question in dispute, is the proper location of the line between the stone at B, and the willow stump at C, and this is a question of law, which ought to have been determined by his Honor. The description of the boundary in the award, after reaching the stone at B, is: “ thence N. 57, E., 34 poles, with the ditch, to a willow stump on the bank of the ditch.” The ditch was a fixed and certain object, existing at the time the award was made, and must control the course and distance. The word I( with,” in this connection, means “ through” and not u parallel to,” as contended for by defendant’s counsel. By a fair, legal construction of the description of the boundary in the award, the line commences at the stone at B. and runs through the ditch to its end, and thence along the water run to the willow stump at C.

The principles of law involved in this case are so plain and well settled, that they need no further discussion, or reference to authorities. The jury found a verdict against the plaintiff, and therefore the question as to the measure of damages is not properly before us.

On another trial, it may be well for the plaintiff carefully to consider the question, whether in law he is entitled to recover the damages he claims, for so slight a trespass.

Let this he certified.

Pee Oithiaivi. Venire de novo.