Norwood v. . Crawford

19 S.E. 349, 114 N.C. 513

Opinion

AvnKY, J.:

PicARSON, Chief Justice, referring to the case of Harry v. Graham, 1 Dev. & Bat., 77, said, in delivering the opinion in Safret v. Hartman, 7 Jones, 203: “It is decided in that case that a posterior line could not be reversed in order by its intersection with the prior line to show the corners unless such posterior line was certain, because to do so would be to extend the'distance of the prior by the course of the posterior line. The chance of mistake resting on the one or the other being equal, it was deemed proper to follow the order in which the survey was made.” If the measurements of linos in all original surveys had been accurate instead, as we continually observe, of falling far short of monuments reared as corners, and if all surveys were laid off in squares or equilateral triangles it might make no material difference .whether surveyors should run backward or forward from any admitted corner in order to locate the boundary lines. But where by running with the calls a different result from that attained by reversing is necessarily reached or may ensue the safer and more certain method of following the order of the original survey by the interested parties who directed it is, as a rule, adopted. Harry v. Graham, supra. We find no case in our Reports where this Court has given its sanction to the correctness of a survey made by reversing the lines from a known beginning corner. The rule is to run with the calls in regular order from a known beginning and to resort to the test of reversing in the subsequent progress around the boundary only where the terminus of a call cannot be ascertained by running forward, hut can he fixed with absolute certainty by running reversely the next succeeding line.

Leaving out of view the other exception and conceding for the sake of the argument that the defendant'waived the right of “trial by jury ” upon any issues “raised before'’ ■the Clerk, to which the statute (eh. 22, Laws 1898) provided that he should be entitled on the hearing “de novo” in the ¡Superior C!ourt, wc propose first to discuss the sufficiency of the reason given by the Court for directing that the survey should he made, contrary to the general rule, by reversing the lines from an established beginning corner. It was admitted that the poplar, the beginning, was at a known location. “Course and distance from a given point is a certain description in itself, and therefore is never departed from unless there be something else which proves that the course and distance stated in the deed w'as thus stated by mistake. * * * Bo with reversing the line. The party cannot have recourse to that method of ascertaining a previous line in the order of description unless by reversing he gives a more certain means of identifying the prior line than the deed gives in its description of that line itself. The natural order of survey is that which the deed shows the parties to the deed adopted to identify, to their own satisfaction, the land intended to be conveyed by the one to the other. It may be considered as their direction how the identity shall be established by survey at any future time and it supposes certain points as the beginning to be established.” Harry v. Graham, supra, pp. 78, 79. In our case it seems that running from a known poplar as a beginning and following the calls of the deed, no established corner would be found at the end of the distance for a number of successive calls, except that the Court finds that there was a natural object called for at C, but it does not appear that the description of course and distance, according to the report of the survey referred to bjr the Court, was wanting-in any one of such calls, and there is no evidence in these unfailing directions for reaching a succeeding station of mistake, whether C was or was not the terminus of the first call. The learned Judge who heard the-case below seems to have rested his opinion upon the fact that the beginning atP and the three last corners, F, B and A, located respectively at rocks and a pile of stones, -were admitted to be at the points indicated on the map, and that in running b}r course and distance the calls of the deed in regular order and without variation that for the stones would pass south of the true station (at A) to the hand marked M, and thence to I) instead of B. It is manifest that the Court acted upon an erroneous view of the rules of surveying established in the two leading cases which we have cited and in many others. The beginning being fixed, the true rule was to run the calls when course and distance were given and locate the corners accordingly, unless testimony was offered to identify some corner called for and locate it at a longer or shorter distance from the point of departure. Redmond v. Stepp, 100 N. C., 212. When the station next preceding the stones (at A) was reached by actual measurement, the next comer (at A) being identified, the succeeding line should have been run to the known point (at A), disregarding course and distance, because a corner ascertained by usual marks or located by agreement of the parties (as the stones were) becomes in contemplation of law “a fact incorporated into the deed so as to make it a part of the description” (Safret v. Hartman, supra, p. 204) and is thereby made more certain than the actual measurement on the line called for. The invariable rule seems to require that the lines shall be run from a known beginning according to direction and distance if given in the order in which the parties originally ran and arranged them, but if a call is reached in the regular order which either bv a failure to specify distance or by fixing the corner on a line of another tract makes its terminus uncertain and by reversing the next succeeding call from a known point the location of the line or point called for can be made certain, then that mode of surveying becomes proper only because it plainly tends to the attainment of the leading object in making all surveys — certainty of location. Tf, for instance, the first call in the deed by which the surveyor ran had been for a point in the line of another tract, and thence with such line a given distance to a third corner, which was admitted to be at a certain point on said line, it would have been proper to reverse the call from the third corner so as to ascertain the point at which a prolongation of the first line would intersect with that of the adjacent tract. The same course would be pursued, and for a similar reason, where in the case supposed course but not distance was given in the first call and the line of the adjacent tract was known to be marked from the third corner to a point at which running by course the first line would intersect with it. Harry v. Graham, supra; West v. Shaw, 67 N. C., 439. If, however, the location of the beginning point itself had been left in doubt and could be fixed as a mathematical certainty by the description that it was at a certain distance and a certain course from a point, ultimately called for as the corner, immediately preceding the beginning in returning to the latter, the line would be run from such last corner in order to determine where the beginning was located. Cowles v. Reavis, 109 N. C., 417.

It is stated as a fact in the judgment of the Court that the surveyor appeared not to have been able to find “the branch referred to in the first call.” In his report the surveyor describes the line, recommended by him, as running up a branch, both in the first and third paragraphs of it. But however that may be, the Court relieves us of the trouble of discussing the bearing of this discrepancy on the case, when it is stated as a conclusion of law based upon an assumed fact (the admitted location of a corner at 0) that course and distance should be disregarded in running the first line because a natural object is called for at C. If that be true, then manifestly the first call should have been run to such known point, and the succeeding lines according to course and distance, until a -known or admitted corner should be called for, as at A. Cowles v. Reeves, supra; Buckner v. Anderson, 111 N. C., 572. Accepting as true the facts stated by the Court, as leading to the opinion that greater certainty would be attained by reversing the lines, we conclude, therefore, that there was error in the judgment of the Court even if we concede that the right of trial by jury had been waived hv the defendant, since upon the admitted facts stated by the Court the lines should have been run from the known beginning by course and distance, if no more certain evidence of location was shown, and in regular order. The reasons given by the Court were not sufficient to justify a departure from the general rule.

For the reasons given a new trial must be awarded to the defendant, and it is unnecessary to pass upon the question whether the defendant waived his right of trial by jury. It may not ho amiss, however, as this is the first appeal involving the construction of the late statute (Acts of 1893, eh. 22), the object, of which is manifestly to make processioning of land at last the means of adjusting controversies as to boundaries, to volunteer a suggestion as to the duties of surveyors appointed by the Clerks under the act. It. was not contemplated that the surveyor should be treated in any sense as a referee, or should in his report give the Court the benefit- of his conclusions of law. He is required to survey the lines according to the contention of each of the parties and to make a map in which shall be designated, by lines and letters or figures, the boundaries as claimed by each. His report should show by wluit deed or deeds he surveyed, at the request of either, and the successive calls surveyed, with detailed accounts of the measurement by course and distance, also of the marked trees or corners claimed as such, and what was the nature and appearance of the marks, whether course and distance were disregarded in running any given line, whether any stops were taken to ascertain the age of the marks on line trees and corners, and all other facts developed by such survey as would tend to enlighten a Court or jury in the trial of a controversy as to boundary. We are led to make this suggestion by the fact that the deeds by which the surveyor ran are not mentioned in the record, nor are the descriptions contained in them set forth. We infer what were some of the calls of the deeds attempted to be located from the meager statement of the controverted points and admissions contained i'n the judgment and the report of the surveyor, which was referred to by the Court as one of the sources from which the facts on which his judgment is based were ascertained. That report, however, does not go sufficiently into details, and it would have been more satisfactory, if there was no controversy as to facts, had the Court incorporated into the judgment a full statement of every material admission of either of the parties.

New Trial.