Justice v. Luther

• Decision Date: 28 February 1886
• Citation: 94 N.C. 793
• Court: North Carolina Supreme Court
• Parties: W. T. JUSTICE v. R. S. LUTHER.

94 N.C. 793

W. T. JUSTICE

v.R. S. LUTHER.

Supreme Court of North Carolina.

February Term, 1886.

CIVIL ACTION, for the recovery of land, tried at Spring Term, 1883, of the Superior Court of BUNCOMBE county, before Avery, Judge, and a jury.

There was a verdict and judgment for the plaintiff, from which the defendant appealed.

The case is sufficiently stated in the opinion of the Court.

Mr. Chas. A. Moore, for the plaintiff .

Messrs. T. F. Davidson and S. F. Mordecai, for the defendant .

SMITH, C. J.

This action, begun on August 26th, 1874, is prosecuted for the recovery of the possession of a small portion of land, alleged to be wrongfully withheld by the defendant, parcel of a tract specifically described in the complaint, and consisting of one hundred and ninety-one acres. No answer seems to have been made, or if made, it is lost, and not found in the record. After numerous continuances, the cause came on for trial before a jury, at Spring Term, 1883, of Buncombe Superior Court, when a verdict was rendered, in which they “find all the issues in favor of the plaintiff, and assess his damages at,” &c.

The plaintiff, in support of his title, introduced in evidence:--

I. A grant issued November 24th, 1803, to Samuel Harris.

II. A second grant issued December 4, 1804, to the same.

III. A deed made July 20th, 1805, by Samuel Harris to James Patton and Andrew Erwin, for 120 acres, calling for the first grant, and purporting to convey part of the land contained in it.

IV. A deed dated December 14th, 1838, from James Patton to Wilson Green, for the land described in that next preceding deed.

V. A deed from Daniel Green, shown to be the heir-at-law of Wilson Green, who had died intestate, to the plaintiff, bearing date August 25th, 1870. Upon this state of the proofs it was admitted that the plaintiff showed a prima facie title to the land described in the last mentioned deed to himself.

To rebut this, the defendant relied on an estoppel, and in its support produced the record of a former action between the plaintiff and himself, with reversed relations, wherein he, the defendant, was plaintiff, and the present plaintiff was defendant, in a controversy about the title and boundary of the same land, and which action terminated in a verdict of the jury in these words: “That they find the issues in favor of the plaintiff, and find the true line of Harris's tract, No. 1, to be from the Alder spring to the post oak, the beginning corner of No. 2.”

Upon this verdict, judgment was rendered, and the plantiff, (the present defendant,) put in possession under a writ issued for that purpose. In executing the writ, the deputy sheriff, one Jones, caused the line to be run by one S. B. Gudger, a surveyor, from the post oak to the Alder spring, as understood to have been intended in the verdict, at which running the present plaintiff, being there part of the time, made no protest. There was no dispute as to the position of the post oak, as fixing the northeast corner of the second grant issued to Harris, but the controversy was as to the location of the Alder spring, between which terminal objects, a direct line formed the divisional boundary between the parties. The Court ruled, that the only inquiry for the jury to make, was as to the location of this line, and whether the defendant's possession extended over and south of it.

The testimony and exceptions taken to the rulings of the Court during the progress of the trial, which are before us on the appeal, are in substance as follows:

I. B. F. Patton, a witness for the plaintiff, testified, that he ran the line from the post oak to the spring known as the Alder spring, and that it passed through the defendant's enclosure, leaving about two acres south of it. The line so run since this action was brought, is north of that located by Gudger.

II. W. G. Candler, examined by the plaintiff, also stated that he went on the premises with one Culberson, in the absence of both parties, and after the suit was instituted, and ran the line from the post oak, to what is known as the Alder spring, the only spring whose water was used, and the locality of which is known as the Alder spring, and a part of the defendant's possession south of the line.

This testimony was received, after objection that the witness was not appointed by the Court to make the survey. It was competent to be heard, as is any other pertinent testimony tending to ascertain where the line is, while surveys made under an order of the Court, have of course greater weight, and as showing the precise contentions of parties, calculated and intended more to elucidate, than can be a mere ex-parte survey. But the latter is not for this reason to be excluded.

Andrew McAfee, for the plaintiff, testified that he was present at the surveys of both the preceding witnesses, and that the defendant had about four acres south of the lines run, enclosed and in cultivation in wheat; that he “uses water out of the spring that Patton and Candler ran to,” and has done so ““for thirty years;” that there is no other spring in that vicinity, and it “is known as the Alder Spring,” and that he, the witness, conveys the water a short distance from the spring to a spout.

One Meredith Williams, and the plaintiff, gave similar evidence about the line run, and the defendant's possession South of it.

For the defendant, several witnesses were examined, the material import of whose testimony is this:

I. Jones, the deputy who executed the writ of possession, caused the line to be surveyed by Gudger, who was assisted by two chain-bearers, and put the plaintiff in that action in possession up to it. Justice was present some of the time and objected. Defendant's fence is on or near the line.

1I. Samuel Gudger, in making his survey for the deputy, “began at the spout, and ran half-way towards the end, then he began at the post-oak, and ran west to about the centre, or half-distance of the entire line. The two lines were about thirty-five feet apart. He then ran from the post-oak, allowing one degree first, and struck the spout. The...