Cutts v. Casey, 40

Citation180 S.E.2d 297,278 N.C. 390
Decision Date14 April 1971
Docket NumberNo. 40,40
PartiesC. H. CUTTS v. S. Worth (Wirt) CASEY and wife, Martha B. Casey.
CourtUnited States State Supreme Court of North Carolina

Blake & Trawick, Burgaw, Rountree & Clark, Wilmington, for plaintiff appellee.

Corbett & Fisler, Burgaw, for defendant appellants.

SHARP, Justice:

This action of trespass to try title was before us at the Fall Term 1967, Cutts v. Casey, 271 N.C. 165, 155 S.E.2d 519. It was here again at the Fall Term 1969, Cutts v. Casey, 275 N.C. 599, 170 S.E.2d 598. Reference is made to these two decisions for the history of the case and a re sume of the evidence in the first two trials.

The complaint alleges: Plaintiff is the owner of 2.8 acres in Topsail Township, Pender County, described by metes and bounds and designated as lot No. 3 on the map of the Division of Lands of Jesse W. Batson, recorded in Map Book 5, page 78. Defendants, asserting an invalid and unfounded claim to the land, have trespassed upon the lot and committed waste. Plaintiff prays that he be declared the owner, and entitled to the immediate possession, of the tract described in the complaint; that he recover $2,000.00 in damages; and that defendants be restrained from further trespasses.

Answering the complaint, defendants deny that they have trespassed upon any land belonging to plaintiff. They allege: Defendants are the owners of lot No. 1 of the Nancy Batts subdivision of lot No. 3 of the Division of the Millie Bishop Estate, described by metes and bounds in paragraph 1 of the further answer and on the map recorded in Map Book 5, page 8. Plaintiff is trespassing upon the described land and, unless restrained, will cause defendants irreparable damage. Defendants and their predecessors in title have held, and adversely possessed, the property in suit under known and visible lines and boundaries for more than twenty years next preceding the institution of the action, and under color of title for more than seven years prior thereto. Defendants pray that they be declared the owners, and entitled to the immediate possession, of the lands described in the answer; that plaintiff be restrained from further trespassing upon the property; and that defendants recover $1,000.00 in damages from plaintiff.

At the third trial of this action the case was heard by Cowper, J., and a jury upon the transcript of the evidence offered by plaintiff and defendants before the referee in October 1965. The parties stipulated that they claim from a common source and specified the instruments through which each claims record title to the land in dispute.

The common source is land grant No. 1696, dated 20 April 1859, from the State to Jesse W. Batson for 51 acres adjoining Frederick Rhue on Topsail Banks: 'Beginning at a stake, William B. Sidbury's corner on the sound; running thence with Sidbury's line across the Banks South twenty-five East sixty-six poles to a stake at the edge of the ocean; thence with the edge of the ocean North fifty-three East 107 poles (1765.5 feet) to Frederick Rhue's line; thence with Rhue's line North twenty-five West eighty-eight poles to a crooked creek; thence with the meanders of said creek to the beginning.'

The Batson grant describes a quadrangular-shaped tract lying between uncontroverted natural boundaries and between the boundaries of adjoining landowners, Rhue and Sidbury. The location of the Sidbury line is one of the crucial questions in this case. The location of the Rhue line, the northeast boundary of the Batson grant, is not in dispute. The Rhue line, which is the southwestern boundary of a grant of 114 acres on Topsail Banks from the State to Frederick Rhue, made on 18 November 1854, begins 'at a stake at Cokle or Crooked Creek landing on the sound side, then South thirty-five East ninety-two poles to the Ocean. * * *' This line is well known and established on the ground. As such it is a fixed monument. Batson v. Bell, 249 N.C. 718, 107 S.E.2d 562. The parties stipulated that line A--B on the court map is the Rhue line and the third call of the Batson tract. This map, which is incorporated in this opinion, was made in December 1956 by J. W. Blanchard, Surveyor, to show the contentions of the parties.

As the first step in his effort to establish the location of the Sidbury line plaintiff introduced in evidence grant No. 1740, dated 4 January 1845, from the State to William B. Sidbury for 170 acres between Topsail Inlet and Stump Inlet. The description reads: 'Beginning on a dead cedar at the east end of a hammock near Cockle Creek Pond; thence South twenty-three East fifty poles to a stake; thence South fifty West two hundred, sixty poles to a stake between the Hammock and the Atlantic; thence North Twenty-three West one hundred and sixty poles to a stake in the sound; thence to the beginning.'

Here we note that the northeastern line of the Sidbury grant (50 poles in length) does not run to the ocean. The southwestern line of the Batson grant runs the same course to the ocean and calls for 66 poles.

On 1 August 1879 J. W. Batson and wife conveyed to Millie Bishop a tract of land which, it is stipulated, is a portion of the land described in the Batson grant. The lot conveyed is described as 'a certain tract of land in (Pender) County lying on Topsail Banks and adjoining the lands of Vashti Atkinson and bounded as follows, Viz.: 'Beginning at a stake, Vashti Atkinson's corner in the Sound; running thence with said Vashti Atkinson's line across the banks South twenty-five East sixty-six poles to a stake at the edge of the ocean; thence with the edge of the ocean North fifty-three East fifty-three poles (874.5 feet) to a stake; thence North twenty-five West eighty-eight poles to the sound; thence with the meanders of the sound back to the Beginning.' Defendants claim title to the land in dispute under the deed from Batson to Bishop.

At this point we note that, although the first call in the deed from Batson to Bishop contains the same course and distance as the first call in the Batson grant, the beginning point is designated as Vashti Atkinson's corner, not William B. Sidbury's corner. It is also noted that the second call in the Bishop deed is for the same course, and approximately one half of the distance, as the second call in the Batson grant. Prima facie, by this deed Bishop acquired about one half of the western portion of the Batson grant.

In a special proceeding instituted 21 January 1956 the heirs of Jesse W. Batson sought to partition the lands which he owned at the time of his death. Those lands are described in the petition as the 51 acres which Batson acquired by grant No. 1696, less the tract he conveyed to Millie Bishop on 1 August 1879 by deed recorded in Book D, page 514, Pender County Registry.

The commissioners appointed by the court to partition the Batson lands employed Raymond Price, Surveyor, to make the division. In May 1956 he purported to survey the William B. Sidbury grant. His location of Sidbury's northeast line is shown as the line A--E on the map introduced in evidence as plaintiff's Exhibit F. This map is made a part of this opinion. The southwestern boundary of the Batson grant and of the Millie Bishop tract is shown as that same line A--E extended to B. The Rhue line is shown as the line C--D.

Having located the Sidbury line to his satisfaction, in order to define the Batson grant, Price measured from his Sidbury line along the edge of the ocean to the Rhue line. This distance turned out to be 209 poles (3,448.5 feet) instead of 107 poles (1,765.5 feet) as called for in the grant. On the premise that the Vashti Atkinson line was the northeastern line of the Sidbury grant, Price next defined the Millie Bishop tract by running the calls in the deed from Batson to Bishop. He extended the Sidbury line A--E (53 poles) to point B to make the 66 poles (1,089 feet) specified in the first call. From B he ran 53 poles (874.5 feet) along the edge of the ocean; thence N. 25 W. 88 poles to Topsail Sound. Having located the Bishop tract at the southwestern end of the Batson grant, Price then divided the remaining 2,574 feet of ocean frontage into 12 lots of varying widths extending from the ocean to Topsail Sound as shown on Exhibit F. In that division, lot No. 3 was allotted to the heirs of Levi Batson, who conveyed that lot to plaintiff Cutts on 6 October 1964.

We here note that Price, by his location of the Sidbury line, almost doubled the distance of ocean frontage called for in the Batson grant. Such a discrepancy in distance is a factor for the jury to consider in determining whether a disputed line of another tract has been correctly located. Once it has been established, however, 'such line 'controls course and distance, being considered the more certain description and it makes no difference whether it is a marked or unmarked, or mathematical line, * * * Provided it be the line which is called for. " Coffey v. Greer, 241 N.C. 744, 746, 86 S.E.2d 441, 443.

Plaintiff claims record title to the land in dispute through the following instruments: The Batson grant; special proceeding partitioning the lands of Jesse W. Batson, deceased; deed from the heirs of Levi Batson to plaintiff.

The deed from Batson to Bishop is the source of defendants' claim, and they contend that it conveyed a tract located at the northeastern end of the Batson grant, and that the northeast boundary of the Bishop tract is the Rhue line.

In December 1946, on the basis of a survey and map made by R. E. Koonce, Engineer, the heirs of Millie Bishop purported to divide the lands conveyed to her by Batson into six lots, each fronting 159.3 feet on the ocean (a total of 955.8 feet, 81.3 feet more than called for in the Bishop deed) and running back to Topsail Sound. The Koonce division was made on the assumption that the Rhue line was the northeastern line of the Bishop tract, and his map shows that he began his survey at the iron pipe which is the Rhue...

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