{
  "id": 8655252,
  "name": "STATE BOARD OF EDUCATION v. ROANOKE RAILROAD AND LUMBER COMPANY",
  "name_abbreviation": "State Board of Education v. Roanoke Railroad & Lumber Co.",
  "decision_date": "1912-03-06",
  "docket_number": "",
  "first_page": "313",
  "last_page": "317",
  "citations": [
    {
      "type": "official",
      "cite": "158 N.C. 313"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "145 N. C., 132",
      "category": "reporters:state",
      "reporter": "N.C.",
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        11252513
      ],
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    {
      "cite": "139 N. C., 34",
      "category": "reporters:state",
      "reporter": "N.C.",
      "weight": 2,
      "opinion_index": 0
    },
    {
      "cite": "148 N. C., 40",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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  "last_updated": "2023-07-14T16:45:05.014249+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE BOARD OF EDUCATION v. ROANOKE RAILROAD AND LUMBER COMPANY."
    ],
    "opinions": [
      {
        "text": "Clakk, 0. J.\n-Revisal, 1693 (3), withdraws from being granted by the State all \u201cmarsh or swamp land, where the quantity of land in any one marsh or swamp exceeds 2,000 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.\u201d 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, Revisal, 4048, unless the State would have been barred by adverse possession, which is not the case here.\nThe 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 \u201cswamp land.\u201d 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. R. R., 148 N. C., 40.\nThe court charged the jury: \u201cIf 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\u2019s claims were taken out, then the lands were not subject to entry and grant, and the defendant\u2019s said grants would be void and of no effect, for in sucb case there was no power and authority to grant same.\u201d The exception to this charge cannot be sustained. It complies with Revisal, 1693 (3).\nThe court charged the jury: \u201cWas 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 cultivation, land which requires draining in order to make it fit for successful or useful cultivation.\u201d Exception 7 was to this charge and cannot be sustained. The court went on to quote the statutory definition of swamp land enacted 4 March, 1891, now Revisal, 169S, and told the jury that this statutory definition would not apply against the defendant, who held under a grant issued prior to that date, and further added that as to the definition given above, the court did not mean to lay down any hard or fast rule by which the jury were to determine whether the lands in question were swamp land, but merely to- give it as assistance to them in ascertaining what was the common and generally accepted definition of the words \u201cswamp land.\u201d\nThe court charged the jury: \u201cIt is not necessary that every bit. of the land in controversy should be swamp land in order to enable the plaintiff to recover, that is to say, if there be some knolls or higher and drier places in this piece of land that, taken by themselves, might not be deemed swamp, yet if they had swamp land around them in sufficient quantity so that the latter largely prevailed, and taking the whole body, by and large, the gen'eral effect was to make and call the land swamp land, then the knolls or higher ground could be taken in as a part of the whole.\u201d The eighth exception was to this charge, and cannot be sustained.\nThe ninth exception is because the court did not instruct the jury that the grants could be vacated only by \u201cclear, strong, and convincing evidence.\u201d There was no prayer to this effect, and it could not have been given if asked. The charge put the burden on the plaintiff to make out his case by the preponder-anee and tbe greater weight of tbe evidence, and tbis is tbe correct rule in tbis case. Board of Education v. Makely, 139 N. C., 34. Tbe court properly charged tbe jury to answer tbe issues \u201cNo\u201d unless by tbe greater weight of tbe evidence, tbe plaintiff bad shown that tbe land covered by the grants were swamp lands and part of a swamp of more than 2,000 acres.\nTbe statute provides that when it is shown that tbe land is swamp land and within a swamp of more than 2,000 acres, tbe law presumes that tbe board of education is tbe owner thereof, because grants of such land are void and\u2019 unauthorized. Revisal, 4047; Board of Education v. Makely, supra.\nTbe prayers of tbe defendant so far as they were correct were given in substance in tbe charge. It was not necessary that they should have been given in tbe exact language asked for, if given in substance. Horton v. R. R., 145 N. C., 132.\nNo error.",
        "type": "majority",
        "author": "Clakk, 0. J."
      }
    ],
    "attorneys": [
      "W. M. Bond, W. M. Bond, Jr., and WardS Grimes for plaintiff.",
      "A. C. Gaylord and Small, MacLean & McMullan for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE BOARD OF EDUCATION v. ROANOKE RAILROAD AND LUMBER COMPANY.\n(Filed 6 March, 1912.)\n1. State\u2019s Lands. \u2014 'Grants\u2014'Interpretation of Statutes \u2014 Swamp Lands \u2014 Statute of Limitations \u2014 Adverse Possession.\n\u2022Until barred by adverse possession the statute of limitations does not run. against the State (Revisal, sec. 4048) in an action to recover swamp and marsh lands from a claimant holding under a grant which is invalid according to the provisions of the Revisal, sec. 1693 (3).\n2. State\u2019s Lands \u2014 Grants\u2014Swamp Lands \u2014 Interpretation of Statutes \u2014 Evidence\u2014Opinion\u2014Personal Knowledge.\nIn an action involving the question as to whether the locus in quo are swamp lands, etc., within the meaning of Revisal, sec. 1693 (3), it is competent for witnesses to testify, upon their own observation, as to whether the lands were swamp lands or not, subject to the cross-examination of the opposing party, leaving the truth of the matter for the jury to determine.\n3. State's Lands \u2014 Void Grants \u2014 Swamp Lands.\nAn instruction in this case held correct, that if the jury found from the evidence as a fact that the lands in controversy were swamp lands and in a swamp of over 2,000 acres, prior to and at the time the defendant\u2019s claims were taken out, they would not be subject to entry, and defendant\u2019s grant would be void. Revisal, sec. 1693 (3).\n4. State\u2019s Lands \u2014 Swamp Lands \u2014 Definition \u2014 Interpretation of Statutes.\nAfter giving definitions as to the meaning of the term \u201cswamp lands,\u201d and quoting from that given in Revisal, sec. 1695, and instructing the jury that the statutory definition would not apply against the defendant who held under a grant prior to that time, the court said that he did not mean to lay down any fixed rule for the jury to determine whether the lands in controversy were swamp lands, but only to assist them in ascertaining the common and generally accepted definition: Held, no error.\n5. State\u2019s Lands \u2014 Swamp Lands \u2014 Definition\u2014Knolls or High Places \u2014Interpretation of Statutes.\nA tract of land within the area of swamp lands coming within the meaning of Revisal, sec. 1693 (3), need not necessarily be free from knolls or higher and drier places; for when, taken as a whole, the general effect is that of swamp lands, the provisions of the statute apply which withdraw them from the granting authority conferred on the State officials.\n6. State\u2019s Lands \u2014 Swamp Lands \u2014 Burden of Proof \u2014 Evidence \u2014 Quantum of Proof.\nUpon the issue as to whether the lands granted to the defendant were swamp lands within the meaning of the Revisal, sec. 1693 (3), the burden is upon plaintiffs, in this case the. State Board of Education, to establish the affirmative by the preponderance of the evidence, and not by \u201cclear, strong, and convincing proof.\u201d\n7. State\u2019s Lands \u2014 Swamp Lands \u2014 Void Grants \u2014 Ownership\u2014Presumptions.\nGrants of swamp lands within the meaning of Revisal, 1693 (3), are void under the Revisal, sec. 4047, and the law presumes the board of education is the owner of them.\n8. Instructions \u2014 Substance of Special Prayers.\nIt is not necessary that correct requests for special instruction be given in their exact language.\nAppeal by defendant from Cline, J., at Fall Term, 1911, of WASHINGTON.\nTbe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.\nW. M. Bond, W. M. Bond, Jr., and WardS Grimes for plaintiff.\nA. C. Gaylord and Small, MacLean & McMullan for defendant."
  },
  "file_name": "0313-01",
  "first_page_order": 357,
  "last_page_order": 361
}