Boomer v. Gibbs

• Decision Date: 06 March 1894
• Citation: 19 S.E. 226,114 N.C. 76
• Parties: BOOMER et al. v. GIBBS.
• Court: North Carolina Supreme Court

19 S.E. 226

114 N.C. 76

BOOMER et al. v. GIBBS.

Supreme Court of North Carolina

March 6, 1894

Appeal from superior court, Hyde county; Hoke, Judge.

Civil action by W. W. Boomer and others against Alexander Gibbs for title and possession of land, tried at the fall term, 1892 of the superior court of Hyde county, before Hoke, Judge. Judgment for defendants. Plaintiff appeals. Reversed.

The plaintiffs deraigned title through (1) grant to William Watson dated October 2, 1817; (2) will of William Watson devising one-half of the land covered by the patent, each, to his sons, Augustus and James M. Watson; (3) deeds of James M Watson to plaintiff W. W. Boomer dated February, 1873, and of Augustus Watson to plaintiff Riley Murray dated August, 1852 conveying their respective interests in the land embraced within the limits of the patent, which, it is admitted, covers the locus in quo. The defendant relied upon two defenses: (1) That the locus in quo was covered by a grant to John Gray Blount dated November 26, 1799; (2) upon possession under a deed from Eli Smallwood to Thomas Gibbs dated November 26, 1849, and the will of said Thomas Gibbs, dated in 1854, devising said land to the defendant Alexander Gibbs.

The testimony of the surveyor, Wahab, was as follows: "I am a surveyor. Made a survey of the lands in dispute under an order of the court, and made the plats in this case. The point I on the map was pointed out to me, in the presence of both parties, as the 'westernmost back corner of the Weston Long patent;' the point 7, as the southwest corner of the William Carrowan patent; and the point 8, as the southeast corner of the same patent. I do not know where the Indian stake on Pamlico sound is, nor did I run from there to the head of Juniper bay, at the James English landing. Both parties were present, and there was no dispute as to the location of the James English landing. I located the Z on the map as the beginning of the 150-acre Turner patent, and the T as the southwest of the 640-acre Turner patent. Ran from Z to T, then up the line of Turner's patent to a point, X, which would be 200 poles from Turner's northwest corner, X, by platting the same. Then I ran west 220 poles, or thereabouts, to English's ditch, which I struck at the point U. Then I ran up the road, and the 750 poles would give out at V. This point is 176 poles from where the lake is now; that is, from the water of the lake. The point A on the map is 160 poles from the place that was shown me as where the old Blount road went into the Juniper Bay road. There was a sign of the old Blount road there at that time. The point W is 160 poles from a place that was shown me, that a poplar used to stand. This is at the head of the Juniper Bay road, as it now is. W is about 4 chains north of A. I did not run any of the other lines of the Blount grant, but, from my knowledge of the location of the grant, the other lines called for would close in to the beginning. The point T on the map is the southwest corner of the Reuben Benson land, and the point called for as such in the deed from Eli Smallwood to Thos. R. Gibbs. Thence eastwardly to the southeast corner of the said tract I ran to the point which is the southeast corner of the William Carrowan land, and is also one of his southeast corners. Then I turned, and ran north to the point I, which is also a Benson corner, and the corner of the Weston Long patent in the Carrowan patent. Then I turned eastwardly, and ran along the Weston Long patent to the point S, which was pointed out to me as one of John Benson's corners. I ran the line A, 8, B, on the map. I found nothing at B. At 8 I found a stone, and this is known as one of Benson's corners, and the southeast corner of the Carrowan patent. If Blount's line stopped at A, and then ran to B, then Blount's line would pass through the point 8. If you run north to the point V, at the end of the 750 poles, there would be no Benson corner in any of the Blount lines which run eastwardly, nor would there be if you stopped at the point W, and then ran east the calls of the Blount grant. Reuben Benson lived on the Selby patent, and on neither the Carrowan nor Weston patent. If the point T is the southwest corner of the land on which Reuben Benson lived, then the point 8 would be the southeast, or one of the southern corners. I do not know where Sam Weston's house on the lake, where he formerly lived, is situated. I know where Bluff bay is situated. If the Smallwood deed runs eastwardly to the Juniper Bay ditch, and thence up to the stone at T, which is Benson's southwest corner, thence eastwardly to 8, thence up to I, thence eastwardly to S, as the southeast corner of the John Benson land, and thence southwardly to Bluff bay, it will include the locus in quo. If Smallwood's deed to Gibbs stops at T, and then runs to 8, and eastwardly to B, it would not include the locus in quo. Martin lived outside of the patent, and towards the lake." The witness further testified that he surveyed the Smallwood deed from Benson's southwest corner at T and then to 8, and then to I, and then to S, which was pointed out to him as the southeast corner of the John Benson land, at a point on the Weston Long patent; that he did not make any actual survey east of that point; that he did not know where the Samuel Weston house was built, but that he knew where Bluff bay was, and the other points called for in the Smallwood deed south of this point S,--and from such knowledge testified that the remaining lines of the Smallwood deed would close up and embrace the locus in quo.

W. B. Rodman, for appellants.

L. C. Latham, for appellee.

AVERY J.

The land in controversy is included within the lines indicated on the map by the letters and figures 8, I, D, C, B to 8; and the first question raised by the testimony was whether the limits of the John Gray Blount patent extended north to V and then ran south, 82 east, so as to include the locus in quo, or no further north than A, so that the next line would run south of it to B. The call of the patent which gave rise to the dispute was: "Then, with the same, [English's ditch, just previously mentioned as the terminus of the line running west 220 poles,] and the road, northwardly, seven hundred and fifty (750) poles, to a point 160 poles from the lake along the road." If the point A had been shown by undisputed testimony, or had been admitted to have been 160 poles from the margin of the lake, and along the road mentioned, when the survey was made under which the grant was issued, such positive proof would have controlled course and distance, and established the location of the corner at A, though less than 750 poles from the last station. Strickland v. Draughan, 88 N.C. 315. But, as the testimony was conflicting, it was the province of the jury to determine whether the corner was satisfactorily shown to have been originally located at A, and if, in their opinion, the actual site of that corner was left in doubt by the evidence, it was their duty to be guided by what would, in that event, be the more certain description,--the course and distance. This controverted question of fact was therefore properly submitted to the jury, with appropriate instruction for their guidance. Marsh v. Richardson, 106 N.C. 539, 11 S.E. 522; Dobson v. Whisenhant, 101 N.C. 645, 8 S.E. 126; Jones v. Bunker, 83 N.C. 324; Redmond v. Stepp, 100 N.C. 212, 6 S.E. 727; Spruill v. Davenport, 1 Jones (N. C.) 203. If the Blount...