State Bd. Of Educ. v. Roanoke R. & Lumber Co

• Decision Date: 06 March 1912
• Citation: 73 S.E. 994,158 N.C. 313
• Court: North Carolina Supreme Court
• Parties: STATE BOARD OF EDUCATION. v. ROANOKE R. & LUMBER CO.

73 S.E. 994

(158 N.C. 313)

STATE BOARD OF EDUCATION.

v.ROANOKE R. & LUMBER CO.

Supreme Court of North Carolina.

March 6, 1912.

1. Evidence (§ 472^*)—Opinions or Statement op Facts.

A witness who is familiar with land may testify that it is swamp land, although that is the precise question to be determined by the jury; this being a statement of fact.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2186-2195; Dec. Dig. § 472.*]

2. Public Lands (§ 164*)— Grants—Validity.

A charge that, if the land which the state board of education sought to recover was in a swamp of over 2, 000 acres at the time the grants under which defendant claimed were taken out, the grants were void, was proper under Revisal 1905, § 1693, subd. 3, providing that swamp land, where the quantity in any one swamp exceeds 2, 000 acres, is not subject to entry and grant.

[Ed. Note.—For other cases, see Public Lands, Dec. Dig. § 164.*]

3. Public Lands (§ 164*)—Grants—Avoiding—Evidence Required.

In an action by the state board of education to avoid grants of land claimed to be swamp land, a failure to charge that the grants could be avoided only by clear, strong, and convincing evidence is not error, especially in the absence of a request for such instruction, where the court charges that the burden is on plaintiff to establish by the greater weight of the evidence that the lands covered by the grants were part of a swamp of more than 2, 000 acres, since under Revisal 1905, § 4047, lands within such a swamp are presumed to be the property of the board of education.

[Ed. Note.—For other cases, see Public Lands, Dec. Dig. § 164.*]

4. Trial (§ 260*)—Instructions—Conformity to Prayers.

Where prayers are charged in substance, a failure to charge their exact words is not error.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]

Appeal from Superior Court, Washington County; E. B. Cline, Judge.

Action by the State Board of Education against the Roanoke Railroad & Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

A. O. Gaylord and Small, MacLean & McMullan, for appellant.

W. M. Bond, W. M. Bond, Jr., and Ward & Grimes, for appellee.

CLARK, C. J. Rev. 1693 (3) withdraws from being granted by the state all "marsh or swamp land, where the quantity of land in any one marsh or swamp exceeds two thousand acres, or where, if of less quantity, the same has been surveyed by the state, or by the state board of education, with a view, to draining and reclaiming the same." This is an action to declare void certain grants embracing land which it is claimed came within the terms of the above section, and also to recover damages for timber cut by defendants on said land. The plaintiff did not ask to recover damages for timber cut more than three years before suit brought, and, as to the action for the land, the plaintiff is not barred by the statute of limitations which does not run in such cases (Rev. 4048), unless the state would have been barred by adverse possession which is not the case here.

The first five exceptions are because the witnesses, who stated that they were familiar with the land, upon being asked what kind of land it was, answered that it was "swamp land." This being a matter of personal observation, as to a fact within the knowledge of the witness, the answer was competent, subject to cross-examination by the defendant. It is true the jury must find the issue, but the answer of the witness was competent to be submitted to them. Britt v. Railroad, 148 N. C. 40, 61 S. E. 601.

The court charged the jury: "If this was swamp land and in a swamp of over 2, 000 acres prior to and at the time the grants under which the defendant's claims were taken out, then the lands were not subject to entry and grant, and the defendant's said grants would be void and of no effect, for in such case there was no power and authority to grant same." The exception to this charge cannot be sustained. It complies with Rev. 1693 (3). The court charged the jury; "Was the land in question swamp land as is generally called and known'.' Some authorities have defined 'swamp land' as wet, spongy ground, soft, low ground, saturated with water, but not usually covered with it, marshy ground away from the seashore; another, as land the greater part of which is wet and unfit for...