Abernathy v. Stowe

• Decision Date: 28 February 1885
• Citation: 92 N.C. 213
• Court: North Carolina Supreme Court
• Parties: G. W. ABERNATHY v. H. D. STOWE.

92 N.C. 213

G. W. ABERNATHY

v.H. D. STOWE.

Supreme Court of North Carolina.

February Term, 1885.

CIVIL ACTION tried before MacRae, Judge, at Spring Term, 1884, of GASTON Superior Court.

The plaintiff brought this action to recover the sum of money mentioned in the bond sued upon, of which the following is a copy:

“$538.70. For value received, I promise to pay G. W. Abernathy five hundred and thirty-eight dollars and seventy cents, to be paid when he removes from the property which he has sold me, and for a part of the purchase money of which this note is given, all claims, trespasses, or incumbrances whatsoever, and when he gives me full possession to said property, with all the rights, powers and privileges granted to the said G. W. Abernathy and A. Goodson, by a deed of conveyance from John Clemmer, for the tract of land, of which the tract the said G. W. Abernathy sold me is a part. The said deed from John Clemmer is dated August 8th, 1849, and, if it is necessary, I am to have the privilege to apply this money, or so much of it as may be necessary, to the removal of any incumbrances existing on this land bought by me from the said G. W. Abernathy; and I agree to pay eighty-five dollars of this money next October, if necessary, to pay legal expenses incurred by said G. W. Abernathy in attempting to remove said incumbrances, and this note is to draw interest from date. This March 25th, 1880.

+-------------------------------+
                ¦(Signed)¦H. D. STOWE. (Seal).” ¦
                +-------------------------------+
                

The tract of land mentioned in this bond, as sold by the plaintiff, consisted of ten acres, including the “Clemmer or Abernathy mill” and the water-power and dam connected therewith.

The plaintiff alleged in his complaint that he had on his part complied in all respects with the terms, provisions and conditions provided and contained in the bond sued upon.

The plaintiff introduced a deed from John Clemmer to G. W. Abernathy and A. Goodson, bearing date August 8th, 1849, containing two hundred and thirty-seven acres, in which deed the following clause appears, being the clause referred to in the bond declared upon:

“And it is to be further understood that the said Goodson and Abernathy dam adjoining the island is to be kept up by them as high as it is, or to any necessary height clear of any claim of said Clemmer, or his heirs or assigns, in as full a manner as said Clemmer ever enjoyed, unto the said Goodson and Abernathy, and their heirs and assigns forever.”

He also introduced a deed from A. Goodson to C. M. Abernathy, dated November, 1851, for one-half of two hundred and thirty-seven acres, his interest covering the land in dispute; also, a deed from C. M. Abernathy and wife to plaintiff G. W. Abernathy, dated November 2nd, 1878, for one-half of the two hundred and thirty-seven acres mentioned; also, a deed from G. W. Abernathy and wife to H. D. Stowe, defendant, dated March 25th, 1880, including the mills, and being the land for which this note was given, and containing the same condition set out in the above-mentioned deed to Goodson and Abernathy from John Clemmer; and, also, a deed from John Cathey and George Cathey to John Clemmer, dated October 30th, 1834; and, also, a deed from John Hoke to George and John Cathey, dated 1827, and a deed from John Colter, sheriff, to John Hoke, dated 1827.

The plaintiff then proved by A. L. Henderson, the surveyor, that these several deeds covered the land sold by plaintiff to defendant.

He then introduced Jonas Hoffman and G. W. Abernathy, who testified that John Clemmer and plaintiff, and those under whom they claimed, had been in possession of the land sold, claiming the same under the deeds offered by plaintiff, and operating the mills there, and keeping up the dams continuously until the year 1879 from 1837, and that the dam ran along up the river near the bank to a small island, and then across to a larger island. Jonas Hoffman further testified that he went to the mills and took charge of them himself for Clemmer in 1837, and remaining there in charge till 1844. The mill, at the time the witness went there, had the appearance of having been built some three or four years. G. W. Abernathy, plaintiff, as witness for himself, further testified, that he sold this land to defendant in the spring of 1879, for eleven hundred dollars, and gave him a bond for title, and placed him in possession thereof; that the mills were at that time in good running order, and in same condition as provided for in the Clemmer deed, and that there were no claims, or trespasses or incumbrances thereon, that he knew of; that defendant paid something on account of the purchase money and executed the bond sued upon for the remainder at the time it bears date; and that defendant has been in possession and control of the property since the sale in the spring of 1879; that at the time the note sued on was given in March, 1880, witness made defendant an absolute deed and title, and the bond for title was surrendered; that in 1877 or 1878, C. J. Lineberger & Co., who were operating a cotton factory on the river nearly opposite the land sold, built a dam from their side of the river, commencing a little below and running across and joined to witness's fore-bay; this dam was higher than the one witness had, and gave him at his mills a greater head of water, and was no injury to his property, but a benefit; that witness built a part of this dam himself, and used the same in running his mills; that after witness sold the property to defendant, the mills were allowed to go down, and defendant hauled away some three or four hundred dollars' worth of property from the mills; that the fore-bay in the year 1879 was washed out by a freshet, and Lineberger & Co. put a temporary obstruction in the same, “a hedge”; that this was about fourteen feet wide, and could have been removed for from eight to twelve dollars; that witness told Lineberger not to put the same in, but Lineberger did, and agreed to move it at his own expense whenever the owners of the property wished to rebuild and go to work.

The witness also testified that before bringing the action he offered to remove this obstruction himself, and asked permission to do so, which was not given by defendant; and further, that at the time he made the bond to the defendant in the spring of 1879, and at the time he made the title in the spring of 1880, there was enough water to operate the mills sold to defendant, and in same plight and condition as they were under the deed from John Clemmer to Abernathy and Goodson, of date August 8th, 1849; that he gave defendant possession and control of the property sold in the same manner and to like extent as was enjoyed by himself and predecessors under the John Clemmer deed.

The deed from John Clemmer to Abernathy and Goodson, of date August 8th, 1849, specified that it included the two mills.

The witness Abernathy testified that the race dug by Lineberger to run the lower factory was dug since his sale of the property to Stowe, and the execution of the bond sued upon.

The defendant then introduced the record of an action in Gaston Superior Court in favor of W. A. Stowe v. Woodlawn Manufacturing Company, that commenced in 1882.

To this the plaintiff objected. Objection overruled, and the plaintiff excepted.

This action was for damages caused on alleged diversion and appropriation of the water of the river...