{ "id": 11270271, "name": "R. H. GRAY v. J. S. COLEMAN et al.", "name_abbreviation": "Gray v. Coleman", "decision_date": "1916-04-12", "docket_number": "", "first_page": "344", "last_page": "350", "citations": [ { "type": "official", "cite": "171 N.C. 344" } ], "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": "34 W. 20", "category": "reporters:state", "reporter": "W.", "opinion_index": -1 }, { "cite": "22 W. 152", "category": "reporters:state", "reporter": "W.", "opinion_index": -1 }, { "cite": "22 W. 20", "category": "reporters:state", "reporter": "W.", "opinion_index": -1 }, { "cite": "32 N. C., 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1972718 ], "opinion_index": 0, "case_paths": [ "/nc/32/0355-01" ] }, { "cite": "50 N. C., 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277753 ], "opinion_index": 0, "case_paths": [ "/nc/50/0424-01" ] }, { "cite": "131 N. C., 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661232 ], "opinion_index": 0, "case_paths": [ "/nc/131/0425-01" ] }, { "cite": "7 N. C., 82", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684318 ], "opinion_index": 0, "case_paths": [ "/nc/7/0082-01" ] }, { "cite": "18 N. C., 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694165 ], "opinion_index": 0, "case_paths": [ "/nc/18/0425-01" ] }, { "cite": "63 N. C., 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277838 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/63/0497-01" ] }, { "cite": "95 N. C., 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273315 ], "opinion_index": 0, "case_paths": [ "/nc/95/0137-01" ] }, { "cite": "106 N. C., 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651756 ], "opinion_index": 0, "case_paths": [ "/nc/106/0534-01" ] }, { "cite": "169 N. C., 80", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656713 ], "opinion_index": 0, "case_paths": [ "/nc/169/0080-01" ] }, { "cite": "20 N. C., 190", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "162 N. C., 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271606 ], "opinion_index": 0, "case_paths": [ "/nc/162/0460-01" ] } ], "analysis": { "cardinality": 639, "char_count": 15348, "ocr_confidence": 0.46, "pagerank": { "raw": 7.991350677022044e-08, "percentile": 0.4638602482229659 }, "sha256": "28a736bbdc8dee17ea577e926739207e665657085cd2ffda5e06060af4351030", "simhash": "1:22b5b8bcc2ca2fc5", "word_count": 2745 }, "last_updated": "2023-07-14T17:52:28.143754+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "R. H. GRAY v. J. S. COLEMAN et al." ], "opinions": [ { "text": "Hoke, J.\nIt is an established position in our law of boundary that in case of irreconcilable repugnancy, natural objects called for and properly identified will control course and distance, and that the line of another tract, when fixed and established or capable of being so fixed and established by the usual rules for locating land, is to be considered a natural object within the meaning of the principle. Lumber Co. v. Bernhardt, 162 N. C., 460, and authorities cited.\nIt is also recognized that, as a general rule, natural objects in strictness such, as a creek or river when it has distinct and definite identification, are to be given preference over a call by marked lines and artificial corners, unless these last were made with the present purpose of executing a deed conveying the land contained in the survey and the same is made accordingly. Lynch v. Allen, 20 N. C., 190. And the-cases on this subject further hold that when there is ambiguity as to-what is the natural object called for, and to such an extent that parol evidence is required to identify it or to establish what is intended by the call, the question must be referred to the jury for decision, and, in some instances, the call for marked lines will be adopted as affording the safer guide to a correct location. Lumber Co. v. Lumbr Co., 169 N. C., 80; Bonaparte v. Carter, 106 N. C., 534; Baxter v. Wilson, 95 N. C., 137; Gainey v. Hays, 63 N. C., 497; Hurley v. Morgan, 18 N. C., 425; Cherry v. Slade, 7 N. C., 82. In Gainey v. Hays, supra, the boundary line in dispute was \u201cthe main road from Smith\u2019s ferry to Bass\u2019s ferry on the Neuse,\u201d and, there being two roads between the points designated, it was referred to the jury to determine \u201cwhich of the roads was intended by the parties to the deed.\u201d And in Cherry v. Slade, Henderson, J., speaking generally to the question, said: \u201cI think a venire facias de novo should be awarded, because the jury, instead of finding the facts, have only found the evidence. That the line 0 D is Ward\u2019s line, or a line of a tract of land belonging to Ward, is matter-of evidence. That it is the line of Ward called for in Hislop\u2019s patent is a question of fact for the jury to find from the evidence, and this fact may depend upon a variety of circumstances, all proper for the-consideration of the jury. This error has become too common, from confounding the evidence with facts. A line, when once established to-be the one called for, no matter by what evidence (if it be legal evidence), whether it be artificial or natural, will certainly control course- and distance, as the more certain description. A natural boundary, such as a water-course, is distinguished from other water-courses by its name, or by its situation, or by some other mark. One of those means of identifying the water-course cannot control all the rest, if those other means are more strong and certain. A name, for instance, is the most common means of designating it; and this, in general, is sufficiently certain; but it cannot control every other description; and where there-are two descriptions incompatible with each other, that which is the 'most certain must prevail. Cases might be put where it must be evident that the parties were mistaken in the name, and, therefore, the-name must yield to some other description more consistent with the apparent intent of the parties. It is true that in cases of water-courses or natural boundaries, and in some cases of artificial boundaries which are of much notoriety, and have, therefore, obtained well known names, the other descriptions must be very strong; but if they be sufficiently so, the name must give way and be accounted for from the misapprehension or mistake of the parties.\u201d\nOn careful consideration of the record and the facts in evidence, we are of opinion that the plaintiff has not had the benefit of the principles upheld by these last cases, and that reversible error has been committed to his prejudice.\nFrom these facts it appears that \u201cthe pawpaw corner,\u201d the first point the plaintiff\u2019s deed purports to touch Deep Creek, there was one main creek, running south, and some distance below that the creek divided into two prongs of about equal size and making it at least difficult to determine which of the two was the main run; that these prongs came together at or before the termination of the southerly calls of plaintiff\u2019s deed, and there again the point is designated as the main run, while the call for the corner lines, between the northern and southern terminals, is down the run of said creek, omitting the word \u201cmain\u201d except in so far as the word \u201csaid\u201d may be held to indicate main.\nThe trespass, if any, was between these two runs, and, if the eastern is the true location of the run referred to in these deeds, the plaintiff should recover.\nThere is evidence on the part of the plaintiff that the white oak at the termination of the first southern call was on the eastern run, and there was also a cypress, with evidence tending to show it was another monument, and, considering all the evidence bearing on the question, we are of opinion that a proper application of the authorities recited requires that the court, should have left it to the jury to decide which run was designated by the parties and referred to in the deed as \u201cdown the said run\u201d to a \u201cwhite oak:\u201d\nIn two or three places in the charge of the court, and in laying down the rule to guide them to a correct conclusion, the jury were distinctly instructed that the true location of these eastern lines was \u201cdown the run of the main creek as it was when this call appeared in plaintiff\u2019s original deed in 1826.\u201d Not what the parties to the instrument intended by the call \u201cdown the said creek,\u201d but \u201cdown the main creek as it was at that date.\u201d True, we have repeatedly held that \u201cwhat are the boundaries of a tract of land is a question of law,\u201d but, as shown in the cases referred to, where there is ambiguity as to the call of a natural object, the jury must decide what object the parties intended, which run they intended when they wrote, as part of the description, \u201cdown tbe run of said creek,\u201d and tbe relevant evidence as to tbe probable existence of corners called for, etc., should be properly weighed and considered in deciding tbe question. True, at tbe very close of bis Honor\u2019s charge be instructed the jury as follows: \u201cIf tbe plaintiff has satisfied you by tbe greater weight of tbe evidence that tbe main run of tbe swamp at tbe time it was called for in tbe old deed bad these marked trees standing on it which are called for in bis description in tbe complaint and in tbe deeds, and that was tbe main run of tbe swamp, so regarded by tbe parties at tbe time tbe deed was made, you would answer tbe first issue \u2018Yes.\u2019 If, on tbe other band, you\u00b0find that at tbe time that tbe deed was given that tbe marked trees called for stood in tbe Higgs bole run, and that that was referred to by tbe parties as tbe main run.of tbe swamp, then it would be your duty to answer tbe first issue \u2018No,\u2019 \u201d and this is very near in accord with tbe authorities; but, as stated, at least three times in tbe body of tbe charge be bad instructed them that tbe \u201cmain run of tbe creek would control,\u201d necessarily giving tbe impression that this would be true regardless of what tbe parties intended, and we think tbe jury must have been left in uncertainty as to what was tbe true rule for their guidance in determining tbe issue.\nAgain, plaintiff offered to put in evidence tbe record of a division of tbe lands of Benjamin Bell, made in 1833, showing said land was divided into six portions, and offered also to prove in this connection that lot 6, afterwards known as tbe Taylor land, bad been acquired and was held by Mrs. DeLany,-under whom defendant claimed, and that same contained descriptive calls tending, in connection with other facts and papers already in evidence, to support tbe location of tbe eastern line as claimed by plaintiff, among other things, tending to show that eastern run was designated as tbe \u201cmain run\u201d of tbe creek, and this as far back as in 1833, and calling also for a white oak, designated and claimed by plaintiff as bis own corner on or near tbe eastern run, etc.\nTbe record and accompanying deed were excluded by tbe court.\nWe were not favored with an oral argument for defendant, and it is sometimes difficult to apprehend tbe full significance of an objection in an extended trial of this bind, but, as now advised and on tbe record as we now understand it, we are of opinion that this record should have been received. It seems to be tbe admission of a former proprietor of this lot No. 6 against tbe interest of such proprietor and tending to establish tbe location of tbe divisional line between them as claimed by plaintiff.\nUnder tbe authorities apposite, tbe record was relevant to tbe inquiry, and should have been received. Smith v. Moore, 142 N. C., pp. 277-286; Ratliff v. Ratliff, 131 N. C., 425; Cansler v. Fite, 50 N. C., 424; Peace v. Jenkins, 32 N. C., 355.\nFor the errors indicated, plaintiff is entitled to a new trial of the issues, and it is so ordered.\nVenire de novo.", "type": "majority", "author": "Hoke, J." } ], "attorneys": [ "D. L. Travis and A. P. Kitchin for plaintiff.", "Murray Allen and B. 0. Dunn for defendant." ], "corrections": "", "head_matter": "R. H. GRAY v. J. S. COLEMAN et al.\n(Filed 12 April, 1916.)\n1. Deeds and Conveyances \u2014 Description\u2014Natural Objects \u2014 Ambiguity\u2014Questions for Jury.\nOrdinarily natural objects, properly identified, will control course and distance in tbe description of lands in a deed; but where there is ambiguity as to what is the natural object called for, so as to require parol evidence of identification, the question must be referred to the determination of the jury.\n2. Deeds and Conveyances \u2014 Descriptions\u2014Natural Objects \u2014 Private Lines.\nA call in a conveyance o\u00ed land to the line of another tract, when such line is fixed and established or capable of being so fixed and established by the usual rule of locating land, is to be considered a natural object within the meaning of the principle; and natural objects in strictness, such as creeks or rivers, when they have a' distinct and definite identification, are given preference over a call by marked line and artificial corners, unless these last were made for the present purpose of executing a deed and contained in a survey made for that purpose.\n8. Deeds and Conveyances \u2014 Descriptions\u2014Natural Objects \u2014 Streams\u2014Ambiguity \u2014 Evidence\u2014Trials\u2014Questions for Jury.\nIn an action of trespass, involving the true location of the divisional line between two adjoining owners of land, the question was made to depend upon the following description in a former deed in plaintiff\u2019s chain of title: \u201cthence N. 86 E. 45 poles to a pawpaw gum on the main run of Deep Creek; thence down the run of said creek by' a line of marked trees, S. 2 E. 92 poles to a white oak; thence W. 22 W. 20 poles to- a pawpaw on the main run of said creek,\u201d etc. There was evidence tending to show that some distance south of the point where the description touched Deep Creek it divided into two prongs of about equal size, coming together again before reaching the southern terminus, where it is again spoken of as the main channel, and that the trees were marked on the eastern prong, with other evidence of identification, in accordance with plaintiff\u2019s contention, the locus in quo lying between these two prongs. Held, it was for the jury to determine, upon the evidence, which run of Deep Creek was designated by the parties and referred to in the deed as \u201cdown said run,\u201d etc., to a \u201cwhite oak.\u201d\n4. Deeds and Conveyances \u2014 Descriptions\u2014Natural Objects \u2014 Streams\u2014Intent \u2014Instructions\u2014Appeal and Error.\nIn this action of trespass, involving the true divisional line between two adjoining owners of land, the question was made to depend upon whether the line is with the eastern or western prong of a creek .which separates along the line of description and comes together again before reaching the next call in the deed in the plaintiff\u2019s chain of title. Held, reversible error to the plaintiff\u2019s prejudice for the trial judge to instruct the jury that the true location of the line would depend upon \u201cthe run of the main creek as it was when this call appeared in plaintiff\u2019s original deed,\u201d for it should depend upon the intention of the parties in using the terms at the time, to be determined by the jury.\n5. Deeds and Conveyances \u2014 Evidence\u2014Declarations Against Interest.\nA deed in defendant\u2019s chain of title, made in 1833, tending to show that the true divisional line in dispute between adjoining owners of land was in accordance with the plaintiff\u2019s contention, and against the interest of the grantor therein, is held to- be competent evidence in plaintiff\u2019s favor under the circumstances of this case.\nCivil ACTION of trespass on realty, involving ebiefly a question of boundary, tried before Bond,, J., at November Term, 1914, of Halifax.\nOn the trial there was proof that plaintiff owned and was in possession of a tract of land of about 225 acres, the southernmost portion of a larger tract and the eastern boundary of the deeds conveying the title, the calls directly relevant to the question presented being as follows: \u201cBeginning at a black gum, standing in the run of Saw Scaffold Branch, thence N. 86 E. 45 poles to a pawpaw gum on the main run of Deep Creek, thence down the run of said creek by a line of marked trees, S. 2 E. 92 poles to a white oak, thence S. 22 W. 152 poles, thence S. 34 W. 20 poles to a pawpaw on the main run of said creek in the Benjamin Dickens line,\u201d etc.\nIn June, 1853, Moses Smith, Sr., then owner of the entire or larger tract, conveyed the northern part of same to Moses Smith, Jr., the dividing line between them running from the white oak and called in that deed the Taylor and Lemuel Bell corner. Plaintiff, as stated, owns the southern portion of this larger tract. The facts in evidence also tended to show that, some distance south of the pawpaw gum, Deep Creek divided with two prongs, each running in a southerly direction and coming together again at or before reaching the southern boundary at Dickens\u2019 hole. The land in dispute is between these two prongs, and plaintiff claimed and offered evidence tending to show that the eastern prong was the main run of Deep Creek and was the prong designated and referred to by the parties in the various deeds and the one to be followed in running the calls, S. 2 E. and S. 22 W. and S. 34 W., etc.\nThere was evidence on part of plaintiff also tending to show that the white oak called for in the boundary was at or near the eastern prong, and that the line of marked trees followed the same.\nThere was evidence on the part of defendant tending to show that the western prong was the main run of Deep Greek and the line designated and called for in the deeds. The cutting done by defendants was on the land lying between the two runs of the creek, and the facts in evidence tended to show that if the eastern run of the creek was the correct boundary of plaintiff\u2019s deeds, there had been a wrongful trespass by defendant, and if the western was the true location, no wrong-had been done.\nThere was verdict for defendant. Judgment. Plaintiff appealed, assigning for error certain portions of his Honor\u2019s charge and two rulings of the court on questions of evidence.\nD. L. Travis and A. P. Kitchin for plaintiff.\nMurray Allen and B. 0. Dunn for defendant." }, "file_name": "0344-01", "first_page_order": 396, "last_page_order": 402 }