Town of Belhaven v. Hodges

• Decision Date: 18 September 1946
• Docket Number: 19
• Citation: 39 S.E.2d 366,226 N.C. 485
• Parties: TOWN OF BELHAVEN v. HODGES et al.
• Court: North Carolina Supreme Court

39 S.E.2d 366

226 N.C. 485

TOWN OF BELHAVEN v. HODGES et al.

No. 19

Supreme Court of North Carolina

September 18, 1946

This action was tried as a processioning proceeding to establish the boundary line between adjacent lands of the Town of Belhaven and the defendants.

The defendants were restrained from using the property now in dispute, January 15, 1945.

The pertinent facts are as follows:

The respective parties claim title from a common source, namely W. J. Bullock.

The lot now owned by defendants was conveyed to one George L Swindell, September, 20, 1901, and described by metes and bounds as follows: 'Beginning on Front Street 50 feet from the L. Latham Northwest corner, running with said Street North 43 West 50 feet to L. W. Cox line; thence South 47 West with said Cox line to the deep waters of Pantego Creek thence South 43 East 50 feet; thence North 47 East to Front Street, the Beginning; it being the westwardly half of a lot purchased by J. M. Lupton of L. W. Cox and wife, May 28 1901.'

Swindell conveyed this lot to Thos. E. Adams and Adams conveyed it to Anna M. Montgomery in 1925, and described it as follows Located in the Town of Belhaven, Beginning on Front Street 50 feet from L. Latham's Northwest corner; running with said street North 43 West 50 feet to the line of the Town of Belhaven; thence South 47 West with said line, etc.

W. O. Montgomery and wife, Anna M. Montgomery, conveyed the property to Reuben Williams in 1926, and Reuben Willaims and wife conveyed the property to the defendants in 1940, and described the property as follows: 'Commencing at an iron stake on the South side of Front street, on a line between the Montgomery property and the property of J. M. Lupton Estate; thence running South 47 degrees West along the Lupton line to Pantego Creek; thence in a northerly direction following the meanders of Pantego Creek to the line of the Town Dock property; thence North 47 degrees East to Front Street, to the beginning. It being the same property which was conveyed to the said Reuben Williams by W. O. Montgomery and wife by deed dated April 26, 1926, and duly recorded in the office of the Register of Deeds of Beaufort County, in Book 256, at page 195, to which reference is made for a more complete description.'

On April 30, 1907, William T. Kirk and wife, conveyed to the Town of Belhaven a lot described by metes and bounds as follows: 'Beginning on Front Street at George L. Swindell's northwest corner and running North 43 West with said street a distance of 80 feet; thence South 47 West to Pantego Creek; thence along and with the waters of said Creek 80 feet in a southerly direction; thence North 47 East with George L. Swindell's line to the Beginning; it being the same lot or parcel of land conveyed by Alice K. Smith and others to William T. Kirk, by deed dated August 12, 1905, and duly recorded in the Register's office of Beaufort County in Book 132, page 496, to which reference is hereby made.'

H. R. Keaton, on November 3, 1925, purchased a lot adjoining the property of the Town of Belhaven described as follows: 'Adjoining the lands of William T. Kirk on the North, and others, bounded as follows, viz: Beginning at William T. Kirk's Northwest corner at Front Street; running with the said street 125 feet to a stake set up at the road leading to W. E. Muir's Oyster House; thence with said road South 47 West 200 feet to a stake set up; thence about Southeast 80 feet; thence 47 West to the Channel of Pantego Creek; thence Southeast 50 feet or to the line of William T. Kirk; thence with said line North 47 East to the Beginning at Front Street.'

The deeds from the original grantor, as well as those to the present owners, including mesne conveyances, for the respective properties involved herein, were introduced in evidence.

The defendants are the present owners of the property described above as the Swindell lot and Mrs. J. M. Lupton is the owner of a lot having a frontage of 50 feet on Front Street adjacent to the East of the Swindell lot. The defendants own other property to the East of the Lupton property and adjacent thereto, fronting on Front Street.

H. L. Rayburn, a Registered Surveyor, witness for the plaintiff, testified that he made a survey for the defendants of their property in 1943, and one for the Town of Belhaven of its Town Dock lot in 1944. He further testified he collaborated with Blake C. Lewis, Registered Surveyor, in the preparation of a map showing the measurements of the properties involved and the contention of the parties, for use in the trial of this cause; and that there was no difference in the measurements on the Lewis map and his surveys in 1943 and 1944.

The Lewis map, bearing the date November 30, 1945, designates by the letter K. the Northwest corner of the Latham property, now the property of the defendants, lying East of the Lupton property, and the Northeast corner on Front Street of the Lupton property, at which point is a U. S. Coastal Geodetic monument. The map designates by the letter A. a point in the southern margin of Front Street 50 feet West of the point designated by the letter K. as the Northeast corner of the Swindell or Hodges lot, which lies West of the Lupton property. The letter B. is shown on the map at an iron stake in the margin of Front Street, 50 feet West of the point designated by the letter A. The letter C. designates a point at an iron stake in the margin of Front Street 17.8 feet West of the point designated by the letter B.

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There is an iron stake in the margin of Front Street 79.8 feet West of the point designated on the map by the letter B. and 62 feet West of the point designated by the letter C., which iron stake the Town of Belhaven claims is its Northwest corner and H. R. Keaton's northeast corner. The respective parties are claiming the land which lies between the points designated on the map by the letter B., and the letter C., on Front Street, 17.8 feet in width and extending 610 feet to Pantego Creek. The eastern line of this strip is designated on the map by a line from the letter B. to the letter H. and the western line by a line from the letter C. to the letter G.

The witness Rayburn testified that in making his survey of the properties owned by the defendants in 1943, that the defendant Claude D. Hodges and Mrs. J. M. Lupton agreed that Mrs. Lupton owned the 50 feet on Front Street, beginning at the point designated by the letter K., the location of the U.S. Coastal Geodetic monument. That he started at the point designated by the letter K., and placed a stake at the point designated by the letter A., 50 feet West of the point designated by the letter K., and then ran North 43 West 50 feet to the line of the Town of Belhaven, which line is designated on the map by the letter B. In 1944, he surveyed the Town lot, and no marker having been placed at the Northeast corner of the Hodges property, the point designated as the beginning point...