Koons v. Bryson

• Decision Date: 28 May 1895
• Docket Number: 117.
• Citation: 69 F. 297
• Parties: KOONS v. BRYSON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

69 F. 297

KOONS v. BRYSON et al.

No. 117.

United States Court of Appeals, Fourth Circuit.

May 28, 1895

Moore &amp Moore, for plaintiff in error.

Before GOFF and SIMONTON, Circuit Judges, and SEYMOUR, District Judge.

SEYMOUR District Judge.

This was an action of ejectment, tried in the circuit court for the Western district of North Carolina. Upon the conclusion of the plaintiff's evidence, the learned judge who tried the case in the circuit court ruled 'that the plaintiff had failed to make out his case as to three material points He had failed to locate the boundaries claimed; he had failed to make out a chain of title, there being one missing link-- the lost record had not been supplied; and he had not shown the defendants in possession of the land claimed. ' Thereupon, in deference to the opinion of the court, the plaintiff took a nonsuit, and appealed. Judgment of nonsuit was duly signed by the judge.

Being a final judgment disposing of the case, and rendered upon a ruling on matter of law duly excepted to by the plaintiff, it is subject to review by writ of error. Central Transp Co. v. Pullman's Palace Car Co., 139 U.S. 24, 11 Sup.Ct. 478. It can make no difference, being merely matter of form, whether the plaintiff takes a nonsuit in deference to the opinion of the court, or the court orders a nonsuit. The former is the uniform practice in the state courts of North Carolina. Mobley v. Watts, 98 N.C. 284, 3 S.E. 677.

We have not had the assistance of either an argument or a brief from the defendants, and can only conjecture the grounds upon which plaintiff's evidence was deemed insufficient to make out a prima facie case as to the location of boundaries and as to defendants' possession.

1. As to location of plaintiff's boundaries. Plaintiff claims through mesne conveyances under three grants described in the declaration as Nos. 406, 628, and 389. The dispute is as to the location of No. 406. Plaintiff's contention is that the grant is bounded by the lines on the plat returned by the court surveyors.

(Image Omitted) The defendants claim that the boundaries of the grant are represented by the dotted lines on the plat marked 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 1. The defendants are said to claim under a grant from the state which includes the 'gold mine' of the plat. If plaintiff's contention as to boundaries be correct, the mine is within the boundaries of grant 406. If defendants' claim of location be admitted, it is not. So the question raised is, whether there is evidence that should have been submitted to the jury in support of the former contention. On this question the plaintiff introduced the testimony of R. B. Justice, one of the two surveyors appointed by the court, and one of the signers of the plat referred to and printed herewith. Mr. Justice says in his testimony that, when he went into the community to survey 'these lines,' he knew nothing of the boundaries, and made inquiries 'for the persons named in the certificate and survey to grant 406, viz. W. W. Lowdermilk and J. A. McCall, named as chain carriers in said survey. ' He could not ascertain the whereabouts of Lowdermilk, but found McCall. McCall, at his request, went with him to the black oak, located at D. Putting his hand on the black oak, which was marked as a corner, McCall stated that the surveyor began at this point; that they then ran east to the next corner at a chestnut. McCall went with witness along a marked line to the chestnut at E, and putting his hand upon the chestnut, which was marked, said, 'This is the corner to which we run. ' In the same manner, alluding to Justice's testimony, McCall went with him to corners F, G, H, etc., until they reached A, pointing out the lines and corners. At or near A, as McCall told Justice, the original survey stopped. The other courses and distances were estimated. When the party reached A, as McCall declared, it became dark, and they only ran a short distance from that point south towards the South Carolina line. The call for the line A, B, witness (Justice) goes on to testify, of 110 poles did not take them to the South Carolina line, which is 276 1/2 poles south of A. Contrary to what is indicated by the original patent and plat, the line of Jackson county is crossed by the line from A to the state line, so that upon reaching the latter, to reach the next corner called for, viz. the corner of Jackson county, the call must be reversed and a distance of about 28 poles must be run in a direction opposite to that called for in the grant. From the chestnut oak at corner A the boundaries described in the grant are:

'Thence S. 110 poles to the South Carolina line, thence S., 70 degrees W., with said line, to a pine (80 poles) at the corner of Jackson county; thence N., 70 degrees W., with said county line, 410 poles to a stake; thence N., 23 degrees E., 180 poles to a black oak.'

The black oak, as has been stated above, is identified in the declaration of McCall to the witness Justice as the initial point of the original survey, and is the D of the plat. McCall died after having been subpoenaed as a witness in this action. That his declarations as given by Justice, are competent evidence in North Carolina is undisputed. The evidence tends to locate, and must be held, in the present attitude of this case, absolutely to locate the boundaries of the patent from D to A in accordance with the plaintiff's contention. It is not necessary, for the purposes of this decision, to definitively locate the boundaries of A, B, C, D. In whatever manner the three courses from A to C may be run, whether or not it should be held that the corner of Jackson county and the South Carolina line must be a corner of the patent, and that one of its boundaries must run from such corner 410 poles with the Jackson county line, in any event the succeeding line of the patent must be run, regardless of course or distance, to the black oak identified by McCall as the beginning of the actual survey. Barclay v. Howell, 6 Pet. 498; Preston v. Bowmar, 6 Wheat. 580; Morrow v. Whitney, 95 U.S. 551; Land Co. v. Saunders, 103 U.S. 316; Ayers v. Watson, 113 U.S. 594, 5 Sup.Ct. 641; Credle v. Hays, 88 N.C. 321; Baxter v....