W.M. Ritter Lumber Co. v. Montvale Lumber Co.
| Decision Date | 25 May 1915 |
| Docket Number | 586. |
| Parties | W. M. RITTER LUMBER CO. ET AL. v. MONTVALE LUMBER CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Swain County; Carter, Judge.
Action by the W. M. Ritter Lumber Company and another against the Montvale Lumber Company and others. From the judgment, both parties appeal. Affirmed.
Testimony as to facts told witness held properly excluded, where he could not tell what was said or by whom, merely testifying that it seemed to be agreed by all of those present.
The witness Walker mentioned in the opinion testified that along in the '70's he noticed trees on Forester ridge marked as if they were line trees. The court excluded the statement that they were marked as if they were line trees admitting the evidence that he noticed a line of marked trees. A witness testified that he was employed by Kope Elias to show the lands of Swepson to prospective purchasers; that Elias instructed him to show the lands west of Forester ridge, and never directed him to show the lands east of such ridge; that Elias had a map made of foolscap or legal paper pasted together; and that later he had another map containing more land than the first and which was a larger, better looking map than the first one. This evidence was excluded.
The judgment was as follows:
This action coming on for trial before the Honorable Frank Carter judge holding the courts of the Twentieth judicial district upon the report of the referee heretofore appointed in the cause, and exceptions thereto filed by the parties plaintiffs and defendants, and having been heard, and the findings of fact and conclusions of law having been found by the court as set forth in the record, it is now considered and adjudged by the court that the plaintiff W. M. Ritter Lumber Company is the owner in fee simple and entitled to the possession of so much of the land in controversy as is hereinafter described, to wit, an undivided five-thirteenths interest in state grant No. 1837, issued to R. M. Wikle, bearing date the 25th day of May, 1855, and of state grant No. 1838, issued to C. A. Wikle bearing date the 25th day of May, 1855, and the owners and are entitled to the possession of the timber, easements, and other rights on the land described in the A. M. Cable grants Nos. 7814 and 7815, more fully described and referred to in a deed from Horace F. Taylor and Ella F. Crate, trustees, to W. M. Ritter, dated July 2, 1903, and registered in the office of the register of deeds of Swain county, N. C., in Deed Book Y, p. 247, January 1, 1904, being Plaintiffs' Exhibit No. 57, and more fully described as beginning on a buckeye at or near the state line between Tennessee and North Carolina, standing in Starkey Gap, east of Briar knob and west of the head of Big Chestnut ridge, the said two tracts of land being located as shown upon the official map in this cause made by the surveyors appointed by the court, viz., H. S. Hayes and C. W. Slagle, and marked "A. M. Cable grants, as claimed by plaintiffs." And, as to that portion of one of the said Cable grants which laps upon the R. M. Wikle grant No. 1837, it is adjudged that the plaintiff W. M. Ritter Lumber Company is the owner in fee of five-thirteenths interest in addition to the timber, easements, and other rights herein adjudged to belong to the plaintiff W. M. Ritter Lumber Company.
And it is further adjudged that the beginning corner of the R. M. Wikle grant No. 1837 is a beech (now down) that formerly stood at or near the Indian Camp branch, a tributary of Bone Valley creek, being the beech claimed by the plaintiffs and found by the court to be the beginning corner of the said tract of land, at the point marked "beech," the southwest corner of grant No. 1837, as found by the court and shown on the official map filed in this cause by H. S. Hayes and C. W. Slagle, surveyors as aforesaid; and it is further adjudged that grant No. 1837 covers and includes the land beginning at said beech, and running thence north 320 poles to a stake; thence east 320 poles to a stake; thence south 320 poles to a stake; and thence west 320 poles to the beginning.
It is further adjudged that the beginning corner of the C. A. Wikle grant No. 1838 is a chestnut on Bear Pen ridge found by the court to be at that point, blocked by H. S. Hayes and G. I. Calhoun, and claimed by the plaintiffs to be the beginning corner of the said grant; said chestnut being at the point marked "chestnut," the southeast corner of the C. A. Wikle grant No. 1838, as indicated on the official map filed in this cause by H. S. Hayes and C. W. Slagle, surveyors.
On motion of counsel for the defendants, it is adjudged that the eastern boundary line of grant No. 138 to George S. Walker from the chestnut oak marked A on said plat, made by H. S. Hayes and C. W. Slagle, is and extends in a straight line from that chestnut oak to a sugar maple, which stands or did stand at the Tennessee and North Carolina state line at the head of the Big Chestnut ridge, and that the western boundary line of grant No. 3290 to W. L. Love from said chestnut oak is the same as said eastern boundary line of grant No. 138, and extends from said chestnut oak to said point where the sugar maple stands, or did stand, at the line between Tennessee and North Carolina, at the head of the Big Chestnut ridge; said point at the head of the Big Chestnut ridge where the sugar maple stands, or did stand, being indicated on said plat by the letter D, and being on top of Smoky Mountains.
And it is further adjudged, on motion of counsel for the defendants, that the plaintiffs W. M. Ritter Lumber Company and Hazel Creek Lumber Company are not, and neither of them is, the owner of any land in controversy in this action under any interpretation of the pleadings west of said line extending from said chestnut oak at A to said sugar maple, or the point where it stood, at D, except as otherwise hereinbefore adjudged.
And on motion of defendants' counsel, it is further adjudged that the defendant Montvale Lumber Company is the owner in fee simple and entitled to possession of the following described land, lying and being in the county of Swain, state of North Carolina, to wit: Being part of the land granted George S. Walker in grant No. 138, and bounded and more particularly described as follows: Beginning at a sugar tree at the head of Big Chestnut ridge, the northeast corner of grant No. 138, on top of the Smoky Mountains in the line between the states of North Carolina and Tennessee (said tree having fallen and being gone and the place where it fell being indicated by a stone), from which tree a forked beech on the Tennessee side bears north 28 1/2~ east 68 links distant, a birch 24 inches in diameter on the Tennessee side bears north 5~ west 71 links distant, a mountain oak on the North Carolina side 24 inches in diameter bears south 38~ west 90 links distant, a forked buckeye north 66~ east 37 links distant, a white flint rock north 80~ east 34 links distant, and runs south 28~ west down Big Chestnut ridge, crossing Defeat branch at 652 poles, the top of Little Chestnut ridge at 26 poles, crossing the Horse Cove branch at 892 poles, 1,060 poles to a stake and pointers in Taylor and Crate's line, tract No. 6604; then with that line west, crossing Bone Valley creek at 104 poles, 130 poles to a stake, northwest corner of Taylor and Crate's tract No. 6604; thence with the line of said tract No. 6604 south 47 poles to a stake on the line of Crate Hall's tract No. 6219; then with Hall's line south 56~ west 80 poles to a large rock and pointers in a cove on Sam Buchanan's line; then with Buchanan's line north 19~ east 60 poles to a chestnut oak on top of a ridge, Buchanan's corner; then with said Buchanan's line north 27 1/2~>>> west 79 poles to a large chestnut oak on top of the ridge and near a gap in the ridge; then north 72 1/2~ west 52 poles to a chestnut; then north 58 1/2~ west 83 poles to a small chestnut oak near the top of the ridge, Buchanan's northwest corner; then south 28 1/2~ west, crossing a branch at 64 poles, crossing a second branch at 105 poles, 170 poles, to a chestnut oak on the top of Forester's ridge, Buchanan's corner; then up the Forester ridge, with its various meanders, north 25~ west 18 poles, north 18~ west 18 poles, north 26 1/2~ west 26 poles, north 34 1/2~ west 16 poles, north 25~ west 28 poles, north 16 1/2~ west 12 poles, north 48 1/2~ west 9 poles, north 13~ east 14 poles, north 22 1/2~ east 5 poles, north 31~ west 10 poles, north 12 poles, north 26 1/2~>>> west 12 poles, north 3~ west 9 poles, north 22~>> east 31 poles to the head of Mill ridge, north 23 1/2~ west 20 poles, north 16~ west 18 poles, north 39~ west 20 poles, north 51 1/2~ west 17 poles, north 40~ west 7 poles, north 52 1/2~ west 18 poles, north 32~ east 34 poles, north 65~ west 16 poles, north 72~ west 10 poles, north 37 1/2~ west 34 poles, north 31~ west 20 poles, north 45~ west 18 poles, north 68 1/2~ west 22 poles, north 52~ west 23 poles, north 23~ west 40 poles, north 16 1/2~ west 60 poles, north 22~ west 46 poles, north 18~> west 14 poles, north 27~ west 14 poles to the top of Blockhouse Mountain, north 25~ east 41 poles, north 47~ east 23 poles, north 36~ east 10 poles, north 32~ east 26 poles, north 57 1/2~ east 12 poles, north 39~ east 26 poles, north 54 1/2~ east 20 poles, north 20 1/2~ east 18 poles, north 6 1/2~ east 21 poles, north 41~ east 24 poles, north 28~ east 22 poles, north 61~ west 10 poles, north 12 1/2~ east 77 poles to the low gap at the head of Eagle creek; then up the side of the Smoky Mountains north 23~ west 18 poles, north 27 1/2~ west 18 poles, north 38~ east 14 poles, north 35~ east 14 poles, north 12~...
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