Cherry v. Andrews
| Decision Date | 14 December 1949 |
| Docket Number | No. 162.,162. |
| Citation | 56 S.E.2d 703,231 N.C. 261 |
| Parties | CHERRY et al. v. ANDREWS et al. |
| Court | North Carolina Supreme Court |
L. B. Cherry and another sued J. E. Andrews and another to recover land and damages for trespass thereon.
From a judgment of the Superior Court of Bertie County, Walter J. Bone, J, for defendants, plaintiffs appealed.
The Supreme Court, Winborne, J., found no error, holding that plaintiffs' exceptions to overruling of their motion for judgment on a referee's report and submission to the jury of an issue as to plaintiffs' ownership and right to possession of described land related to matters determined on a former appeal from a judgment of nonsuit, that such issue was sufficient to present the question whether plaintiffs owned such land, and that the trial court's charge and rulings deleting portions of plaintiffs' requested instructions were in substantial accord with legal principles on which the case was decided on the former appeal, so that such principles constituted the law of the case and were binding on the second appeal.possession of land between high-water mark and run of swamp were for jury, and rulings deleting from plaintiffs' requested instructions statements that call in deed for line to swamp extends to run thereof were in substantial accord with legal principles, on which judgment of nonsuit was reversed on former appeal, so that such principles constituted law of case and were binding on appeal from subsequent judgment for defendants on jury's negative answer to such issue.
Civil Action to recover land, and for damages on account of trespass thereon.
This case was here on former appeal, 229 N.C. 333, 49 S.E.2d 641, where the facts pertinent thereto are stated. However, in the light of the record, as it now appears, we deem it expedient to recount the case in pertinent aspects.
Plaintiffs allege in their complaint that they are the owners in fee simple of two certain specifically described tracts of land in Windsor Township, Bertie County, North Carolina, —the boundaries of the second tract only are controverted.
Defendants, answering the allegation of ownership of the land described in the complaint, admit that ; and they aver "that the eastern boundary of said land begins at a marked gum tree on or near the banks of Cashie River, and extends a northerly direction from said marked gum tree, and the southern boundary line of said land runs from said marked gum tree north 85 deg. west 36 % poles; then north 70 deg. 30 min. west 16 poles a chopped beech tree, all as designated on the plat of Benjamin Raynor land division and which said line adjoins the Watson Tayloe heirs land * * *".
And upon the hearing before the referee, plaintiffs offered evidence in pertinent part, substantially as follows:
1. The admission of defendants, as above stated, that is, that "plaintiffs own title to the Benjamin Raynor lands * * ".
2. A deed from Jonathan S. Tayloe to Watson Tayloe, dated September 20, 1869, Book NN, page 250, description reading as follows: "Beginning at a ditch across the road leading from James Duers to the old mill across Chiskey, James Duers' line; then down said ditch and branch James Duers' line, to a large gum, said Duers' corner; thence continuing down said branch until it intersects another branch a short distance above the crossing place in traveling to the Old Chiskey Mill seat; thence continuing down said last named branch a part of which is ditched to a large dead cypress tree standing about 30 yards from the field fence; thence continuing nearly parallel with the fence through the swamp to the Main Run of Cashie River; thence up the Main Run of Cashie to where the Main Run of Chiskey enters into Cashie; thence up Chiskey run to the Old Mill seat, continuing from thence to James Duers' line, following his line to the road, including a small piece of land on which Abram Phelps resides; thence along the road to the Beginning, containing 200 acres more or less". And plaintiff offered testimony tending to show that the description in this deed covers the land now in controversy.
Plaintiff also offered two deeds from Watson Tayloe to Benjamin Raynor, one in 1878 for 100 acres of land, and the other in 1886 for 50 acres of land, and offered evidence tending to show that the lands conveyed by these two deeds are parts of the tract obtained by Watson Tayloe from Jonathan Tayloe, as above set forth; and that the description in the older deed runs "to the run of Cashie Swamp; thence up the run to the run of Chiskey Branch".
And plaintiff also offered in evidence a mortgage deed from Watson Tayloe and wife to William J. Myers, dated March 18, 1890, registered in Book 68, page 244, the description being the same as the second tract in the complaint, and is as follows: "Beginning at the Benjamin Raynor back gate on the path leading to where Watson Tayloe now resides and running said path to the branch; thence down the branch to Cashie Swamp; thence up said swamp to Benjamin Raynor's line; thence up said line to the Beginning, containing 150 acres, more or less, being a part of the Joanna S Tayloe land".
And also a deed from William J. Myers, mortgagee, and John Hughes to Benjamin Raynor, dated February 9, 1892, registered in Book 99, page 387, in which the recitals are that "William Myers sold under power; John Hughes bought; assigned his bid to Benjamin Raynor"—the description being the same as in the mortgage deed from Watson Tayloe to William J. Myers, registered in Book 68, at page 244, as above set forth. (And it is the contention of plaintiffs that the description in the mortgage covers the then unsold portion of the tract of land Jonathan Tayloe conveyed to Watson Tayloe as described above).
And plaintiff also offered testimony tending to show that the land described in the said mortgage adjoins and lies south of the land described in the first deed from Watson Tayloe to Benjamin Raynor as above set forth.
And the plaintiff offered testimony tending to show that the branch referred to in the call "thence down the branch to Cashie Swamp" extended from the highlands through the swamp land into the run of the swamp or Cashie River. Defendants offered evidence to the contrary.
The referee, in his report, finds as facts, among other things: "Fourth: That the lands in controversy in this action are swamp lands * * * That there is a well defined line of demarcation between the high land and the swamp land, being as high in some places as ten feet.
And the referee made his conclusions of law in keeping with such findings of fact.
Defendants filed exceptions Nos. 3, 4 and 8 to the 4th, 5th and 9th findings of fact, respectively, and tendered this issue. as being particularly raised by defendant's exceptions 3, 4 and 8.
Plaintiffs thereafter moved the Superior Court (1) to overrule the exceptions of defendants, and (2) for judgment confirming the report. The motions were overruled, and plaintiff excepted.
And when the case came on for hearing at May Term, 1948, as stated in opinion on former appeal, the trial court entered judgment as of nonsuit, predicated upon the premises that "counsel for plaintiffs admitted in court that if the description in the deed from Myers, mortgagee, to Benjamin Raynor does not extend from red letter 'A' on the map sent by the referee with the report, on to the run of Cashie Swamp the plaintiffs could not recover * * * and it being admitted by parties plaintiff and defendants that Cashie River is a non-navigable stream, and the court having considered the report, exceptions and the evidence bearing upon the sole question involved as to the proper location of plaintiffs' lines, and the court being of the opinion upon the record and admissions made in court that plaintiffs are not entitled to recover".
And plaintiffs in their brief filed on the appeal to this Court, presented as "Questions Involved" these two:
The decision of this Court, reported in 229 N.C. 333, 49 S.E.2d 641, 642, was (1) "that whether the call 'thence down the branch to Cashie Swamp' terminates at the edge of the swamp or extends on to the run of it, involves a matter of fact to be found by the jury upon the evidence offered"; and (2) that "testing the exceptions to the referee's report filed by defendants, and their tender of...
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