Duncan v. Hall

• Decision Date: 10 December 1895
• Citation: 117 N.C. 443,23 S.E. 362
• Court: North Carolina Supreme Court
• Parties: DUNCAN v. HALL et al.

23 S.E. 362

117 N.C. 443

DUNCAN

v.HALL et al.

Supreme Court of North Carolina.

Dec. 10, 1895.

Location of Boundaries — Running Courses — Ejectment—Answer—Admission op Possession.

1. In ejectment, where the location of land conveyed by a deed is disputed, but one of the corners is determined, the location made by running the line from such corner in the same direction as it is run by the deed should be adopted, rather than one ascertained by reversing the calls of the deed from such corner.

2. A denial in the answer that defendant is wrongfully and unlawfully in the possession of land consisting of a virgin forest is not evidence that he is exercising such control over the land as will subject him to a possessory action.

Appeal from superior court, Wilkes county; Battle, Judge.

Action of ejectment by N. W. Duncan against John Hall and others. Judgment was rendered for plaintiff, and defendants appeal. Dismissed as to Hall. Reversed as to other defendants.

Dula & Wellborn, for appellants.

Glenn & Manly, for appellee.

AVERY, J. The court refused the request of defendants' counsel, made in apt time, to instruct the jury, in effect, that, in fixing the location of the lower line of the Moravian deed, the proper and lawful method of conducting the survey was to run with the calls of the deed from an admitted corner, or from one which the jury believed was located by the testimony, instead of reversing the calls from such points. A corner admitted or as certained by the usual marks, or established by the testimony to the satisfaction of the jury, is to be considered by them (as was said by Pearson, J., in Safret v. Hartman, 7 Jones [N. C] 203) "a fact incorporated into the deed so as to make it a part of the description." If the principle contended for by the defendants' counsel is correct, it was immaterial whether the plaintiff admitted or the jury found from the testimony that the beech tree on Moravian creek was a corner of the Moravian tract. Whether established by proof or admission, it being in evidence that the line was reversed, when, by running forward, a different result would have been attained, it was error to refuse to instruct the jury that the location made by running, as the deed was originally run from a known corner or one established by proof, was to be adopted, rather than one ascertained by running in the opposite direction. It is a fact of which the courts must take and have taken notice that the measurements of boundary lines in making the original surveys for deeds and grants are often, if not always, inaccurate. Those discrepancies between the distance called for and the actual measurement occur much more frequently, too, in an undulating or mountainous section, because, as is a matter of general knowledge, it often happens that, In the original surveys of grants, only two or three lines of a square or parallelogram were actually run, and that the earlier surveyors, at least, universally adopted surface measurement. In running long lines from the top of one high and precipitous...