{ "id": 9249112, "name": "H. WADE BAKER and wife, LOLA W. BAKER; JACOB L. BAKER (Widower); and JACOB L. WHITAKER, Executor of the Estate of GOLDEN McCLELLAN BAKER and Executor of the Estate of ETHEL PAULINE WHITAKER BAKER, Petitioners v. CLYDE GRAY MOOREFIELD and wife, DONNA W. MOOREFIELD, Respondents", "name_abbreviation": "Baker v. Moorefield", "decision_date": "2002-11-19", "docket_number": "No. COA01-1594", "first_page": "134", "last_page": "140", "citations": [ { "type": "official", "cite": "154 N.C. App. 134" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "442 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "497" } ], "opinion_index": 0 }, { "cite": "336 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539559 ], "year": 1994, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0284-01" ] }, { "cite": "94 S.E. 1045", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "pin_cites": [ { "page": "1047" } ], "opinion_index": 0 }, { "cite": "175 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "year": 1917, "pin_cites": [ { "page": "65" } ], "opinion_index": 0 }, { "cite": "558 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "894", "parenthetical": "\"[T]he general rule is that calls to natural objects control courses and distances.\"" }, { "page": "894", "parenthetical": "\"A call to a wall... if known or established, is a call to a monument.\"" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9366839 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "517", "parenthetical": "\"[T]he general rule is that calls to natural objects control courses and distances.\"" }, { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0509-01" ] }, { "cite": "177 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "438" }, { "page": "438" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553121 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "623-24" }, { "page": "623-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0618-01" ] }, { "cite": "556 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "354 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138470, 138323, 138489, 138494, 138495 ], "year": 2001, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0365-03", "/nc/354/0365-04", "/nc/354/0365-02", "/nc/354/0365-01", "/nc/354/0365-05" ] }, { "cite": "551 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "163", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436228 ], "year": 2001, "pin_cites": [ { "page": "628", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0623-01" ] }, { "cite": "416 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "186", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "331 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500912 ], "year": 1992, "pin_cites": [ { "page": "305", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0293-01" ] }, { "cite": "331 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526652 ], "year": 1985, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0093-01" ] }, { "cite": "155 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "522" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "271 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562844 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "170" }, { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0165-01" ] }, { "cite": "93 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5646695 ], "weight": 2, "year": 1876, "pin_cites": [ { "page": "524" }, { "page": "939-40" } ], "opinion_index": 1, "case_paths": [ "/us/93/0514-01" ] }, { "cite": "85 S.E. 438", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1915, "pin_cites": [ { "page": "446", "parenthetical": "citation omitted" }, { "page": "446" }, { "page": "446" } ], "opinion_index": 1 }, { "cite": "169 N.C. 80", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656713 ], "weight": 3, "year": 1915, "pin_cites": [ { "page": "93", "parenthetical": "citation omitted" }, { "page": "94" }, { "page": "93" } ], "opinion_index": 1, "case_paths": [ "/nc/169/0080-01" ] } ], "analysis": { "cardinality": 680, "char_count": 15901, "ocr_confidence": 0.734, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7486895954165668 }, "sha256": "6296711e8e0ff48eb48165e4a0975e6ec3127fe22dc8932d4a7460187844a9d0", "simhash": "1:8b3b6029c45532c6", "word_count": 2647 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BIGGS concurs.", "Judge GREENE dissents." ], "parties": [ "H. WADE BAKER and wife, LOLA W. BAKER; JACOB L. BAKER (Widower); and JACOB L. WHITAKER, Executor of the Estate of GOLDEN McCLELLAN BAKER and Executor of the Estate of ETHEL PAULINE WHITAKER BAKER, Petitioners v. CLYDE GRAY MOOREFIELD and wife, DONNA W. MOOREFIELD, Respondents" ], "opinions": [ { "text": "WYNN, Judge.\nWade and Lola Baker appeal the Superior Court\u2019s judgment establishing a common boundary line between the Bakers\u2019 property and adjacent property owned by Clyde and Donna Moorefield. The Bakers present one issue on appeal: Did the trial court err by finding the recorded deed ambiguous and using a monument, instead of course and distance, to establish the common boundary? After a careful review of the record, we conclude the trial court had competent evidence to find ambiguity in the deed. Moreover, our Supreme Court has consistently held that when \u201cthere is a conflict between course and distance and a fixed monument, the call for the monument will control.\u201d Cutts v. Casey, 271 N.C. 165, 170, 155 S.E.2d 519, 522 (1967). Accordingly, we affirm the judgment of the Superior Court, Stokes County.\nThe facts of this case tend to show that in 1953, the Moorefields and Bakers entered into a land conveyance contract and used the following legal description to describe the property conveyed:\nBEGINNING at an iron stake in the Golden Baker and C.D. Slate line, at a point 54.8 feet, South 79 degrees 51 minutes East of Golden Baker\u2019s and C.D. Slate\u2019s corner in C.T. McGee\u2019s line, and runs thence South 7-1/2 degrees West, said line being parallel to the brick wall of the store building; 100 feet to a corner in line of U.S. Highway 52; thence South 79 degrees 57 minutes East 140 feet to a point in the line U.S. Highway 52, thence parallel with the first line, running North 7-1/2 degrees East 150 feet to an iron stake, Golden Baker\u2019s comer and Mrs. C.D. Slate\u2019s line; thence with her line North 79 degrees 57 minutes West 140 feet to the BEGINNING.\nThe present controversy arises from the placement of a common boundary line which the deed describes as running \u201cSouth 7-1/2 degrees West\u201d and \u201cparallel to the brick wall of the store building.\u201d In 1986, the Moorefields tore down the brick wall and store building, and constructed a new structure on the property. In December 1997, the Bakers filed a Petition to Establish Boundaries in Superior Court, Stokes County. The Bakers alleged that the Moorefield\u2019s new structure encroached on the 7 XA degree boundary arch. In response, the Moorefields alleged that the new structure was parallel to the brick wall of the old store building.\nIn August 2001, the case was tried without a jury before Superior Court Judge Clarence W. Horton who made the following contested Findings of Fact:\n8. Location of the first line, which proceeds generally South . . . is the primary focus of the dispute between the parties. The description of the first line . . . describes a course South 7 J4 degrees West, running parallel to the brick wall of the Store Building .... Although the old Store Building has now been removed ... its exact location was plotted .... [However a] course of 7 A degrees West is not parallel with the Store Building, and does not accurately represent the common boundary line ... as shown by . . . the surveys.\n11. [T]he Store Building was a monument, and the description of the line as being parallel to the Store Building would take precedence over the description of the same line as being South 7 A degrees.\nBased on these findings of fact, the trial court concluded the \u201ctrue boundary lines of the [Bakers\u2019 Property]\u201d did not run 7 XA degrees South, but rather, were parallel to the old store building and brick wall. Accordingly, the trial court affirmed the status quo, and held that the Moorefields were not encroaching on the Baker\u2019s property. The Bakers\u2019 appeal this judgment.\nIn a petition to establish boundaries, \u201cwhere the location of the boundary line ... is admitted, or evidence is not conflicting, . . . the location of the line [is] a question of law for the court.\u201d Young v. Young, 76 N.C. App. 93, 95, 331 S.E.2d 769, 770 (1985). However, \u201cwhere the language is ambiguous so that the effect of the instrument must be determined by resort to extrinsic evidence . . . the question of the parties\u2019 intention becomes one of fact.\u201d Runyon v. Paley, 331 N.C. 293, 305, 416 S.E.2d 177, 186 (1992) (emphasis in original). \u201cFindings of fact are binding on appeal if there is competent evidence to support them, even if there is evidence to the contrary.\u201d Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163, disc. review denied, 354 N.C. 365, 556 S.E.2d 577 (2001) (citations omitted).\nFirst, the Bakers contend the trial court erred \u201cin determining the placement of a boundary line\u201d by \u201cinappropriately isolating a single phrase,\u201d and giving the phrase too much weight. Essentially, the Bakers argue the trial court erroneously concluded that the deed was ambiguous. We disagree.\nThe deed specifically provides that the boundary line running \u201cSouth 7-1/2 degrees West\u201d is \u201cparallel to the brick wall of the store building.\u201d Craig Sizemore, a surveyor hired by the Moorefields\u2019 in 1986, before the present controversy arose, testified that a line drawn 7 % degrees South was not parallel with the location of the brick wall. Marvin Cavenaugh, a surveyor appointed by the Clerk of Court for Superior-Court of Stokes County, also testified that a 7 / degree line was not \u201cexactly parallel\u201d with the brick wall. Thus, the court heard testimony from two professional surveyors that the terms in the original deed were inconsistent when applied to the contested boundary. Accordingly, the trial court\u2019s finding of ambiguity in the deed is binding on appeal, because there was competent evidence to support the trial court\u2019s determination that a \u201ccourse of 7 'A degrees West is not parallel with the Store Building, and does not accurately represent the common boundary line.\u201d Therefore, this assignment of error is without merit.\nSecond, the Bakers contend the trial court erred by using the brick wall of the store building to establish the common boundary instead of using the course and distance description in the deed. We disagree.\nIn North Carolina, it is well established that: \u201c[w]here there is a conflict between course and distance and a fixed monument, the call for the monument will control.\u201d Cults v. Casey, 271 N.C. 165, 170, 155 S.E.2d 519, 522 (1967); North Carolina State Highway Commission v. Gamble, 9 N.C. App. 618, 623-24, 177 S.E.2d 434, 438 (1970); see also Stephens v. Dortch, 148 N.C. App. 509, 517, 558 S.E.2d 889, 894 (2002) (\u201c[T]he general rule is that calls to natural objects control courses and distances.\u201d). Moreover, \u201ca building is frequently regarded as a monument of boundary sufficient... to control course and distance.\u201d Millard v. Smothers, 175 N.C. 61, 65, 94 S.E. 1045, 1047 (1917); see also Stephens, 148 N.C. App. at 517, 558 S.E.2d at 894 (\u201cA call to a wall... if known or established, is a call to a monument.\u201d); Gamble, 9 N.C. App. at 623-24, 177 S.E.2d at 438.\nHere, as previously noted, the terms in the original deed are inconsistent when applied to the contested boundary. Moreover, the conflict involves a call to course and distance that is inconsistent with a known monument. Accordingly, the trial court correctly applied North Carolina law by resolving the controversy in favor of the monument. Therefore, this assignment of error is without merit.\nAffirmed.\nJudge BIGGS concurs.\nJudge GREENE dissents.\n. According to the dissent, this testimony should be disregarded because Sizemore did not survey the call in the deed. It is unclear whether the dissent is questioning his credibility or competence. In either case, however, it is not within the province of this Court to re-weigh credibility evidence on appeal or to raise error where no error is assigned. In the first instance, the dissent might be arguing that Sizemore is not \u201ccredible\u201d because he did not survey the call. However, our Supreme Court has made it eminently clear that: \u201cQuestions of credibility and the weight to be accorded the evidence remain in the province of the finder of facts.\u201d Scott v. Scott, 336 N.C. 284, 291, 442 S.E.2d 493, 497 (1994). In the second instance, the dissent might be arguing that Sizemore is not \u201ccompetent\u201d to testify on the relationship between the call and the brick wall because he did not survey the call. The Baker\u2019s, however, did not raise this objection at trial; The trial court did not have an opportunity to hear or rule on this objection; and the Baker\u2019s did not assign this as error. Accordingly, under our rules of appellate procedure, the competence of Sizemore was not properly preserved and is not before this Court. N.C. R. App. P. 10(a) (2002).\n. In analyzing Cavenaugh\u2019s testimony and reaching a conclusion, the dissent states that \u201ca map pursuant to a survey that closes by following the deed description and accepting the common boundary line as being close to but \u2018not exactly parallel\u2019 to the store building is a more accurate reflection of the parties\u2019 intentions . . .\u201d Essentially, the dissent reasons that interpreting the word \u201cparallel\u201d literally is \u201crepugnant\u201d to the rest of the deed. The dissent assumes, in opposition to the trial court, that the word \u201cparallel\u201d as opposed to the \u201c7 'A degree call\u201d is the repugnant aspect of the deed. In support of this proposition, the dissent notes that \u201cCavenaugh expressed doubt\u201d as to whether the original surveyors \u201cactually went out and located the two corners of the building and created a parallel line.\u201d This doubt, however, is not a sufficient basis to reverse the factual findings of the trial court for three reasons. First, Cavenaugh was not at the original survey. Therefore, his doubt is mere speculation. Second, whether or not the surveyors did their jobs correctly does not have the slightest of relevance in determining the \u201coriginal intent\u201d of the parties. In fact, the original parties to the deed certainly had a greater understanding of the term \u201cparallel\u201d than they did of a \u201c7 A degree\u201d call. Third, even assuming Cavenaugh\u2019s doubts are correct, i.e. the original surveyors did not measure a parallel line as instructed and, therefore, created an ambiguity in the deed, our law compels the trial court to have monuments control over course and distances.", "type": "majority", "author": "WYNN, Judge." }, { "text": "GREENE, Judge,\ndissenting.\nAs I disagree with the majority that, in order to determine the common boundary line between the parties in this case, the call in the deed to a monument prevails over a call to a course, I dissent.\nOur Supreme Court has held: \u201c \u2018In the construction of deeds, words are not the principal thing, . . . and . . . when there are any words in a deed that appear repugnant to the other parts of it, and to the general intention of the parties, they will be rejected.\u2019 \u201d Lumber Co. v. Lumber Co., 169 N.C. 80, 93, 85 S.E. 438, 446 (1915) (citation omitted). As a general rule of hierarchy, \u201c \u2018monuments, natural or artificial, referred to in a deed, control its construction, rather than courses and distances; but this rule is not inflexible. It yields whenever, taking all the particulars of the deed together, it would be absurd to apply it.\u2019 \u201d Lumber Co., 169 N.C. at 94, 85 S.E. at 446 (quoting White v. Luning, 93 U.S. 514, 524, 23 L. Ed. 938, 939-40 (1876)).\nWhile Craig Sizemore (Sizemore), the Moorefields\u2019 surveyor, testified a line drawn \u201cSouth 7-1/2 degrees West\u201d as required by the deed \u201cwould have gone up either close to or through the old store building, and definitely not parallel with it,\u201d this testimony must be disregarded as Sizemore never surveyed the call in the deed. In fact, Sizemore never considered the deed in surveying the property. Instead, he located iron stakes that were not referenced in the deed but pirn-ported by the Moorefields to establish the property boundaries and based his deductions regarding the common boundary line between the Moorefields and the Bakers on the location of these stakes.\nLater in the hearing, the parties also stipulated that, contrary to Sizemore\u2019s testimony, the line would not have gone through the store building. This stipulation was based on a projection by Marvin Cavenaugh (Cavenaugh), the court-appointed surveyor, who explained the line would not even get close to the building, although it would be \u201cnot exactly parallel.\u201d In addition, Cavenaugh expressed doubt \u201c[w]hether or not the day [the property] was surveyed [for purposes of the deed the original surveyors] actually went out and located the two comers of the building and created a line parallel.\u201d\nCavenaugh had prepared several maps with respect to the property in question: (1) a map following the calls in the deed (the deed map), (2) a map (the stake map) reflecting the iron stakes found on the property, (3) a map setting out the Bakers\u2019 contentions regarding the boundaries, and (4) a map outlining the Moorefields\u2019 contentions. With respect to the deed map, Cavenaugh testified \u201cthe deed closed and . . . had a mathematical closure that was proper and acceptable.\u201d Comparing the deed map to the stake map, Cavenaugh concluded that \u201cbeyond [the northern boundary line of the property] there[] [was] not a whole lot of semblance\u201d between the two maps.\nIt thus appears that a map based on a survey that closes by following the deed description and accepting the common boundary line as being close to but \u201cnot exactly parallel\u201d to the store building is a more accurate reflection of the parties\u2019 intentions than a map based on movable iron stakes that hardly has any semblance to the deed description. Upholding the general rule of hierarchy among calls in a deed by taking the word \u201cparallel\u201d literally instead of accepting it as a general reference for the direction of the intended line would make it repugnant to the other parts of the deed and lead to an absurd result. See Lumber Co., 169 N.C. at 93, 85 S.E. at 446. Accordingly, I would agree with the Bakers that the trial court \u201cinappropriately isolated] a single phrase\u201d in the deed and that its judgment must therefore be reversed and remanded for determination of the common boundary line between the parties pursuant to the call in the deed to a course of \u201cSouth 7-1/2 degrees West.\u201d\n. In surveying the property following the calls in the deed, Cavenaugh did not consider the call in the deed to the \u201cline being parallel to the brick wall of the store building\u201d because the building had been tom down several years before.\n. This survey was introduced into evidence as Exhibit H and was later relied on by the trial court in entering its judgment.\n. In comparing the contentions of the Bakers with those of the Moorefields, Cavenaugh concluded the Bakers\u2019 contentions were \u201cmore consistent with the recorded document,\u201d i.e. the deed.", "type": "dissent", "author": "GREENE, Judge," } ], "attorneys": [ "Hough & Rabil, PA, by David B. Hough, for petitioners-appellants.", "Stover and Bennett, by Michael R. Bennett, for respondents-appellees." ], "corrections": "", "head_matter": "H. WADE BAKER and wife, LOLA W. BAKER; JACOB L. BAKER (Widower); and JACOB L. WHITAKER, Executor of the Estate of GOLDEN McCLELLAN BAKER and Executor of the Estate of ETHEL PAULINE WHITAKER BAKER, Petitioners v. CLYDE GRAY MOOREFIELD and wife, DONNA W. MOOREFIELD, Respondents\nNo. COA01-1594\n(Filed 19 November 2002)\n1. Deeds\u2014 ambiguity in description \u2014 sufficiency of evidence\nThere was competent evidence to support the trial court\u2019s finding of ambiguity in a deed where there was testimony from two professional surveyors that the terms in the original deed were inconsistent when applied to the contested boundary.\n2. Deeds\u2014 conflict in description \u2014 monument controls\nThe trial court correctly used the brick wall of a store building as a monument in an action to establish a common boundary where the course and distance description in the deed was inconsistent with the monument. Where there is a conflict between course and distance and a fixed monument, the call for the monument will control.\nJudge Greene dissenting.\nAppeal by petitioners from judgment entered 20 September 2001 by Judge Clarence E. Horton, Jr., in Superior Court, Stokes County. Heard in the Court of Appeals 17 September 2002.\nHough & Rabil, PA, by David B. Hough, for petitioners-appellants.\nStover and Bennett, by Michael R. Bennett, for respondents-appellees." }, "file_name": "0134-01", "first_page_order": 162, "last_page_order": 168 }