Baxter v. Wilson

• Decision Date: 31 October 1886
• Court: North Carolina Supreme Court
• Parties: M. D. BAXTER v. S. P. WILSON et als.

95 N.C. 137

M. D. BAXTER

v.S. P. WILSON et als.

Supreme Court of North Carolina.

October Term, 1886.

OPINION TEXT STARTS HERE

This was an ACTION OF TRESPASS, tried before Gudger, Judge, and a jury, at Spring Term, 1886, of CURRITUCK Superior Court.

The plaintiff in her complaint, alleged that she was the owner in fee of the land described in the complaint, and set forth in the accompanying plat.

Beginning at the letter B and runs to Stewart's bridge on the main road; thence with Stewart's run to the letter H on the creek; thence with the run of the creek south 94° east 26 chains; thence north 12° east 44 chains; thence 35° 19 chains to the road, and with the road south 63° east 15 chains; thence north 1° east 12 1/2 chains; thence north 7° west 8 1/2 chains; thence north 60° west 27 1/2 chains; to the first station, containing 189 acres more or less.

Her claim of title under this description is embraced in the boundaries--B, A, H, G, F, E, D, C and back to B.

She complained that the defendants committed the trespass upon that part of her land contained within the boundaries N, M, E, F, G; by cutting down, working up, and carrying off, a large quantity of cypress timber, in shingles and other forms of timber. That the trespass was committed by the defendants Dough and Leary, who were authorized by the other defendant Wilson, who claimed to own the locus in quo.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

The defendants admitted that the plaintiff owned the land set forth by metes and bounds in the complaint, but alleged that the boundaries as described did not cover the locus in quo.

The following issues were submitted to the jury:

1. Have the defendants trespassed upon the lands of the plaintiff? Answer: They have.

2. What damage has she sustained by reason of said trespass? Answer: $137.40.

3. Did S. P. Wilson authorize Dough and Leary to cut on the lands of the plaintiff? Answer: He did trespass over the line E, F, G, up to the line M, N.

Plaintiff and defendants agree that the line runs as indicated on the plat to the creek at H. The plaintiff contends that the next call, “S. 94°> E. 26 chains with the creek,” must, in this case, be run to the point G, without regard to course and distance, the evidence being, that it was thus actually run, when the land was divided, as hereafter stated.

The plaintiff contends, that the 26 chains must follow the various courses of the creek and stop at N, where the distance gives out when thus run. The plaintiff introduced one M. J. Ferebee, a surveyor, who states that Tully Bell once owned the land now owned by the plaintiff and defendant Wilson; that after Bell's death, his heirs instituted proceedings to sell the same for a division, and employed the witness to divide it into smaller tracts before a sale. He made the survey of the whole tract, and after establishing the lines on the north side of the main road, as shown on the plat, the ditch running from E on the main road was selected as a division line on the south side of said road, and the line H, G, F, was run from the creek, as the calls in the complaint require, to F on said ditch, thence with the ditch to the road at E., and thence to beginning. Witness stated, that the courses and distances were taken from his field notes of this survey; he stated that the division line E. F. G. on the map, is the actual division line established by him. He stated, that from the point H. on the creek, he actually ran a line 26 chains to a tree on the creek at G, and marked the tree, thence he ran the course stated to F. on the ditch, and thence along the ditch to E on the main road. He stated that the call S. 94° E. from H, on the creek, is a typographical error not found in his notes, and that it is an impossible course. Witness also stated, that he made no plat at the time, and that the land was sold according to the courses and distances reported by him in his survey, which are the same set out in the complaint. At the sale a Mr. Sanderson bought the tract in controversy, and afterwards conveyed it to the plaintiff.

S. K. Abbott, a surveyor, appointed under order of the Court to survey the land in dispute, stated that the land embraced within the calls set out in the complaint, could not be located otherwise than by making E, F, G, the true division line; that if the line M, N, were taken as the true division line, and the other calls were run out, it will throw the points B, and line B, A, fifteen chains west of the known natural boundary, Stewart's bridge at A. He reversed the line H, G, E, F, beginning at E on the road and running the calls to G on the creek. He then platted the whole survey, and found that the distance from H on the creek to G on the creek was about one-half chain shorter than 26 chains. He did not actually run it, but calculated the distance. He found no marked tree at G on the creek, but the line F, E, is a ditch.

T. B. Boushall, a practical surveyor, stated that he was called upon to run out the disputed line between plaintiff and defendant; that the defendant Wilson told him that the point E, on the road, thence down the ditch, was a part of the disputed line, but he contended that the ditch should be followed to its beginning, and thence to the creek, but that he ran to the point F on the ditch, and then to the point G on the creek, according to the calls in the plaintiff's deed, as set out in the complaint and shown on the plat.

Neither the plaintiff nor the defendant was a party to the survey and division of the Bell land by the witness, M. J. Ferebee.

His Honor charged the jury, that if Ferebee actually ran and located the line from H, on the creek, to G, and marked a tree at the place G, it was a location of the line, and they should find the line from H, on the creek, to G, on the creek, to be the true line, whether the distance of 26 chains with the creek, reached from H, to G, or not. And he also charged the jury, that if he then ran the line from G, on the creek, to F, on the ditch, and thence to E, on the road, the line E, F, G, would be the true line.

He also charged the jury, that if Ferebee did actually run and locate the line spoken of, then they should follow the course of the creek for a distance of 26 chains, and the line N, M, would be the true line.

In this charge defendant claims there is error.

After the plaintiff had passed upon the jury, the defendants' counsel announced, that if any one on the jury was related to the plaintiff by blood or marriage, such juror would object to himself. One juror who had married the plaintiff's sister, left, and another juror was called in his place. After the new juror had taken his seat, the same announcement was made by the defendants' counsel.

No one on the jury retiring, the defendant declared himself content with the jury, and the trial went on. The last juror who came in after the one who objected to himself, was a first cousin to the plaintiff. He was also connected by marriage with the defendant Wilson, whose father had married the aunt of the juror (mother of plaintiff), and whose nephew had married the sister of the juror.

Upon motion to set aside the verdict of the jury for the foregoing reason, the juror was called and asked if he heard the challenge of counsel. He replied that “he must have heard the words, but if he did, he forgot for the time that he was a connection of the parties.” He also stated that he was impartial between the parties.

It was also shown that the defendant Wilson knew of the relationship of the juror both to plaintiff and himself; that said defendant was...