Den on Demise of Murry v. Sermon

8 N.C. 56

Opinion

Ham., Judge,

delivered his own opinion, and ¿hat of the Court :

I think that I was incorrect in my charge to the Jury below in this, that I directed them to find for ilie Defendant, whether the lake had receded or not\ for, in either case, it remained his bound;; ry. Now, if the recession of the lake was sudden and sensible/ the land which it had covered, anti which, by its dereliction, became dry, would not, and ought not, to be included in the Defendant’s grant. But., if the waters receded gradually and insensibly, the charge would be right, and the lake ought to be considered one of the Defendant’s boundaries. * It is, therefore, necessary that the fact be found, whether the waters of the lake receded imperceptibly or not from the land in dispute,$ because, on that question the rights of the parties depend. And to do that, the rule for a new trial must be made absolute.

* 2 Bl. Com. 261. Harg. Law Tr. 5. Dyer 376. Vattell L. N. 193.