Brown v. Smathers

• Decision Date: 10 September 1924
• Docket Number: 529.
• Citation: Brown v. Smathers, 126 S.E. 22, 188 N.C. 166 (N.C. 1924)
• Parties: BROWN ET AL. v. SMATHERS ET AL.
• Court: North Carolina Supreme Court

126 S.E. 22

188 N.C. 166

BROWN ET AL. v. SMATHERS ET AL.

No. 529.

Supreme Court of North Carolina

September 10, 1924

Appeal from Superior Court, Transylvania County; Bryson, Judge.

Controversy without action by W. Vance Brown and others against George H Smathers and others. From judgment below, plaintiffs appeal. Affirmed.

Statute construed to subject to entry only lands outside territory ceded to Cherokee Indians.

Boundary described as running to state line to be run in shortest available direction conforming to description of land.

Plaintiffs allege that they are the owners in fee and entitled to the possession of a part of the land embraced in a grant (No 230) of 50,560 acres issued by the state to George Lattimer July 20, 1796, and that the defendants wrongfully withhold possession. The grant is represented on the plat by 1, 2, 3 4, 5, 6, 7, 8, 9, 10, and the lines of the excepted part (not claimed by plaintiffs) extend from 1 to a stake on the top of the Tennessee Ridge; thence southwest with the ridge to the top of the Blue Ridge; thence southeast with the top of the Blue Ridge to a stake in the old Lattimer line; thence the various courses of the grant back to 1, the beginning. The locus in quo is so much of the land claimed by the Wolf Mountain Lumber Company as is embraced in the red lines in the northwest corner of the Lattimer grant.

Defendants deny plaintiffs' allegations, set up several defenses and ask for affirmative relief. They allege that the land claimed by the plaintiffs was not subject to grant at the time the entry was laid or the grant issued because it was then occupied by the Cherokee Tribe of Indians, whose right of occupancy had not been extinguished by treaty or otherwise; that by an act of the General Assembly passed in 1783 (1 Potter, p. 435) all entries and grants of the land occupied by the Cherokees were declared "utterly void"; and that other acts were passed declaratory of the general policy of the state to prohibit the entry of any lands so occupied until the title or claim of the Indians had been extinguished. They allege that so much of the Lattimer grant as lies west of the Meigs and Freeman line was not subject to entry until 1817 or 1819, when the General Assembly authorized a survey of land lying west of this line, and that by an act passed in 1835 the unsurveyed land situated between the Meigs and Freeman line and the Tennessee river was made subject to entry and grant; also that practically all the land lying west of this line has been sold to sundry parties who obtained grants therefor in pursuance of the Cherokee land laws, and that the defendants claim title under grants thus acquired; that the Lattimer grant, according to course and distance laps on about 1,100 acres owned by the defendant, Wolf Mountain Lumber Company, and derived from its codefendant George H. Smathers. They ask that they be declared the owners in fee of the land in controversy; that plaintiffs' claim be declared a cloud on their title to the extent of the lappage; and that the plaintiffs be barred of any claim to the land in suit. The land conveyed by George H. Smathers to the Wolf Mountain Lumber Company is subject to the lien of a deed in trust executed by the lumber company to William M. Smathers, trustee, to secure certain purchase-money notes.

A jury trial was waived, and the controversy was submitted for determination upon the following agreed statement of facts:

(1) The plaintiffs claim title to a large area of land lying and being in the counties of Transylvania and Jackson, in the state of North Carolina, included in grant No. 230, issued by the state of North Carolina, to George Lattimer on the 20th day of July, A. D., 1796, and calling to contain 50,560 acres, and it is agreed that whatever title to the area in controversy passed from the state to Geo. Lattimer by virtue of the grant aforesaid is now vested in the plaintiffs.

(2) The defendants claim a portion of the area included in grant No. 230 under and by virtue of certain junior grants issued by the state of North Carolina, to wit, Jackson county grant No. 190, issued by the state to J. T. Foster October 1, 1855; Jackson county grant No. 191, issued by the state to J. T. Foster October 1, 1855; Jackson county grant No. 193, issued by the state to J. T. Foster October 1, 1855, calling to contain 640 acres each; and Jackson county grant No. 14126, issued by the state to C. B. Zachary et al. February 14, 1900, calling to contain 400 acres, the lappage of said grants on grant No. 230, including about 1,100 acres, about 75 acres of which lies on the south side of the Blue Ridge, on the headwaters of Toxaway river, and about 1,025 acres of which lies on the north side of the Blue Ridge, on the headwaters of Tuckaseegee river, and it is agreed that whatever title passed from the state of North Carolina, by virtue of said junior grants, is now vested in the defendants, and it is further agreed between the parties hereby that, if no title passed by said grant No. 230 to Geo. Lattimer to the 1,100 acres of land in controversy in this action, the title passed by said grants Nos. 190, 191, and 193 to J. T. Foster, and grant No. 14126 to C. B. Zachary et al., under whom the defendants claim title to the 1,100 acres of land in controversy, and that title to the same is now vested in the defendants as their interest may appear.

(3) That map hereto attached, and made a part of this agreed statement of facts, correctly shows, for the purpose of this suit, the topography of the country, the ridges, mountain ranges, and streams; also correctly shows the location of grant No. 230, and the area claimed by the defendants under said junior grants, together with the correct location of the line known as the Meigs and Freeman line, run for the purpose of locating the line of the Tellico Treaty of October 2, 1798, and referred to in the acts of the General Assembly for the state of North Carolina for 1809 (now Potter's Revisal, vol. 2, c. 774), and also of the line known as the Hawkins line, run for the purpose of locating the line of the Treaty of Holston, dated July 2, 1791, and also correctly shows the location of the Thirty-Fifth parallel north latitude, and also the line between the states of North Carolina and South Carolina, as now recognized, running from the Ellicott Rock eastwardly, as surveyed and located pursuant to the commission appointed by the state of North Carolina in 1803, and duly ratified by the General Assembly for the state of North Carolina by the act of 1813 (1 Potter, p. 1280); and, further, that the line shown on said map running from the Tennessee Bald, south 27 degrees east, to the southern boundary of this state, represents the most direct course from the Tennessee Bald to the southern boundary of this state, as surveyed and located by the aforesaid commission; and, further, that all distances, relative locations, and all other data and information appearing on said map are correct.

(4) The defendants, and those under whom they claim, have never had any actual adverse possession of that portion of the area claimed by them, lying on the south side of the Blue Ridge, on the waters of Toxaway river, but they, and those claiming under them, have listed and paid taxes on the land in controversy between the parties hereto, for a long period of years, and the plaintiffs have not listed and paid the taxes on the said land for a long period of years.

(5) It is further agreed that grant No. 226 issued and patented by the state of North Carolina, to William Cathcart, July, 20, 1796, calling to contain 49,920 acres, shown on the map hereto attached in red, and designated on said map in words and figures as follows: "Grant 226 to William Cathcart, July 20, 1796," was made the subject of the decision of the Supreme Court of the United States in the case entitled Lessee of Margaret Lattimer et al., Plaintiffs in Error, v. William Poteet, Defendant in Error, reported in 14 Pet. 4 et seq., 10 L.Ed. 328.

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(6) It is further agreed that the plaintiffs now have pending in the superior court for Transylvania county, various other actions involving the same controversy as that involved in this action, said action involving some 25,000 acres, and that the final determination of this action will, to a large extent, settle the controversy between the plaintiffs and the other claimants to areas lying within grant No. 230.

In the judgment his honor construed the call "thence along the dividing ridge between the waters of Pigeon river and Tuckaseegee river to the southern boundary of this state" as running with the summit of the Balsam range a southerly course to the terminus of the water divide designated on the map as "Tennessee Bald;" thence along the Tennessee Ridge a southerly course to where the same intersects the summit of the Blue Ridge at the point designated on the map as "Cold Mountain;" thence along the summit of the Blue Ridge a southeast course to the southern boundary of the state. It was held that the last line extends from this point to the beginning along the boundary of South Carolina and Georgia. His honor adjudged that the locus in quo was within the territory reserved to the Cherokee Indians by the section 5 of the Act of 1783; that the plaintiffs are not entitled to recover the land in controversy; that their claim is a cloud upon the title of the defendants, and should be canceled; that the plaintiffs and those claiming under them be enjoined from asserting any claim, interest, or estate in or to the lands in dispute and from trespassing thereon; and that the defendants recover their costs. Plaintiffs excepted and appealed.

Dayton Hunter, of Elizabethton, Tenn., and Ruffner Campbell, of Asheville, for ...