#### R. P. TAYLOR and Wife, BETTIE R. TAYLOR, et al. v. J. F. MEADOWS et al.

(Filed 10 April, 1918.)

1. Boundaries — Corners—Parol Evidence — Trials—Questions for Jury.

Wliere in an action to recover lands the controversy depends upon the location of the beginning corner given in a deed as “at a planted stone on” a designated street “about six feet southeast of a large red oak,” with conflicting evidence as to its location with reference to that of the red oak, plaintiff contending and offering evidence that it was eleven feet from the street and defendant that it was on the street, the exclusion of defendant’s evidence tending to show his use and occupation of the locus in quo, building, fencing, and cutting trees thereon, in plaintiff’s view without objection, that plaintiff’s contention would run the disputed line through buildings, etc., is reversible error.

2. Same — Questions of Law.

Where parol evidence as to the location of a certain- controlling corner given in a deed does not contradict the written instrument, and its admission is otherwise competent, the question as to what is the corner is one of law and as to where it is located is one of fact for the determination of the jury under conflicting evidence and proper instructions in an action to recover the land.

Civil action, tried before Connor, J., at November Term, 1917, of Gbanville.

Tbe plaintiffs sued for tbe recovery of a parcel of -land in' tbe city of Oxford 30 feet wide by 161 1-3 feet long, as shown on tbe map used at tbe trial in tbe court below, and in this Court at tbe bearing of tbe case.

It appears from tbe record tbat there was a sharp dispute between tbe parties as to tbe beginning comer of tbe larger lot, of wbicb tbe locus in quo is alleged by tbe defendants to be a part. Tbe deed under wbicb tbe *374defendants claim describes it as being “at a planted stone on 'Williams-boro Street about six feet southeast of a large red oak, tbe southeast corner, thence S. 59 W. 135 feet to- a planted stone, thence N. 15% W. 1611-3 feet to a planted stone, thence N. 59 E. 135 feet to a planted stone, thence S. 15% E. 1611-3 feet to the beginning, containing one-half acre.” The plaintiffs contended that this tract had for its beginning corner a point 6 feet from a standing red oak, but 11 feet from Williamsboro Street; while defendants claimed that it is where the deed described it to be, that is on the street, near a red oak, the stump of which is there, and which they say was identified, and that if this is the true beginning corner, and the other calls of the deed are followed, the boundaries will include the land in dispute, while if the calls are run from the point claimed by the plaintiffs to be the true beginning comer, the deeds of defendants do not embrace the said land. There was much evidence, pro and con, as to whether the true beginning comer was at the one or the other place, for example, the surveyor testified that if the lines are run, as claimed by the plaintiffs, the first line cuts off seven feet of the prize-house from its southeast corner, and runs through the center of' its front, and the beginning comer will not be on the street, but eleven feet from it. There was no deed, and no evidence, to show that the beginning corner was so indisputably located as to exclude parol evidence of facts and circumstances to prove where it is, for there was fair ground for controversy as to where it is, under the rule that what is a comer or line is a question of law, and where it is a question of fact.

The defendants, in this state of the evidence, proposed to prove that from 1883 until his death in 1911, J. M. Currin, under whom they claimed, and, since that time to the commencement of this action, the defendants used the land in dispute, fenced it, built a stable on it, and cut down, removed and converted to their own use several large oak trees then standing upon it; that this was done near the front door of the Taylor residence, and in full view of the Taylors, and that they made no objection, nor did they protest against the same. This evidence was, at first, admitted, and afterwards, at plaintiffs’ request, stricken out, and defendants excepted.

There was a verdict for the plaintiffs and judgment thereon, from which this appeal was taken by the defendants.

A. W. Grahapn & Son and R. W. Winston for plaintiffs.

Hides & Stem, B. S. Royster, and T. T. Hicks for defendants.

WaleeR, J.,

after stating the case: We think it was competent for the defendants to show that they held possession of the disputed land for many years, without objection from the Taylors, and, for this pur*375pose, to prove tbe facts and circumstances in regard to building tbe fence on tbe land, erecting a stable tbereon, cutting down trees, valuable for shade, firewood, and so forth, and converting tbe same to their own use. There was fair ground for dispute as to the location of the beginning corner of the lot conveyed by the Taylor-Biggs-Ourrin deed, and, Where is that corner ? is the principal question in the case, and it is not like the one decided in Davidson v. Arledge, 88 N. C., 326; 8. c., 97 N. C., 172. There the dividing line between two tracts was so fixed by the reference to city map, and with such certainty and definiteness that the evidence of a possession indicating a different line was held to be inadmissible, because it tended to contradict the deed, and the only question was, Where were the lots designated on the city map “as Nos. 69, 70, 77, and 78, in Square No. 10, lying on Tryon and College Streets, and being the property on whieh said testator lived at the time of his death?” The difference in their legal aspects between that case and this one will appear from two of the headnotes, as follows:

“1. If the words simply designate the lots by number, the boundary, as circumscribed by actual use and occupation, is the one meant by the bargainor. But where they refer to the lots not only by number, but ‘as known and designated in the plan’ of the town, which plan contains a specific description thereof, it is the same as if that description were incorporated in the deed, and the latter must prevail; and it is incompetent to show by parol that the boundaries were intended to be different.” Davidson v. Arledge, 88 N. C., 326.

“2. WTiere there is a dispute as to the dividing line between two adjoining tracts, the acts and admissions of the adjoining proprietors recognizing one line as the true one, are evidence of its location when the line is unfixed and uncertain, but where it is well ascertained such acts and admissions are not competent evidence either to change the line or to estop the party from setting up the true line.” Davidson v. Arledge, 97 N. C., 172.

That is not precisely our case, for there is nothing in the deed of Biggs to Currin, that so certainly designates this lot as to exclude parol evidence, but, in one respect, the cases are alike, for it was the duty of the judge to tell the jury what, in law, are the comers and lines of the deed, and for the jury to decide where they are. He would say to them that the beginning corner of the lot is that described in the deed, viz., “At a planted stone on Williamsboro Street, about six feet southeast from a large red oak,” and that wherever they found this corner to be, whether at red A, as designated on the map, or at A, would be, in law, the beginning corner. But this requires the jury to pass upon the important question of fact as to where is this corner, designated as the beginning ; and in doing so, they must consider the deeds and any relevant *376facts or circumstances which will enable them to make discovery of the true comer, after searching for it in the light of the evidence. Where is the point described in the deed as on the street about six feet southeast of the big red oak, was purely a question of fact, and in solving it the jury had the right to inquire whether the stump was that of the red oak mentioned in the deed, and if so, to consider the distance and direction from it to the corner as claimed by the defendants, and also to consider the fact that the deed fixes the corner on the street and not away from the street, and also what was said about the stone and the post, and the fence and trees; the building of the stable, and the fact as testified by the surveyor, that the line as claimed by the plaintiffs would cut off one end of the prize-house to the depth of seven feet and pass through the middle of the front of that house. Why are these not pertinent facts ? They could also consider the declaration of any of the plaintiffs as to the true line, which was against his interest. Roe v. Journegan, at this term. This would not be changing a fixed and ascertained line, but merely determining by proof where the'line is, if its true location is disputed, as it is here.

We said at the last term, in Wiggins v. Rogers, 94 S. E. Rep., 685: “Plaintiff proposed to show that the-line had been run some years before the time of the trial by Posey Hyde, and that the respective owners had recognized it as the line of division between them for many years. This evidence was excluded by the court, but we think it was competent, not to change the boundaries of the land Davidson v. Arledge, 97 N. C., 172; S. c., 88 N. C., 326, or, in other words, to show that the parties had orally agreed upon a line different from the true line, but as some evidence to prove where was the true line. Haddock v. Leary, 148 N. C., 378; Barfield v. Hill, 163 N. C., 262, 267. It was also relevant to show character and extent of the possession of the parties. Following this rule, as stated in these cases, we must hold that there was error in excluding the evidence. We do not think the evidence was irrelevant, as claimed by the defendant. It may hot prove very much, but it proves something which the jury should consider in this very close question as to boundary. The conduct of the parties with respect to a certain line, as being the dividing line between their lands, is surely some proof of its true location.”

It was held in Barfield v. Hill, 163 N. C., 262: “Evidence that a certain boundary line in dispute in an action to recover lands had been surveyed by one under whom the plaintiff deraigned his .title, and that those claiming under him had never thereafter claimed beyond this line, is competent evidence in behalf of the defendant, when it tends to establish his claim,” citing Haddock v. Leary, 148 N. C., 379.

*377Tbe building of a fence and bouse on tbe land, and tbe other acts of wbicb proof was offered, were trespasses and likely to meet witb strenuous objection from any one claiming to own tbe land, but not so if ■defendants bad tbe right to so use tbe land.

If it was settled where tbe lines are, no one of them could be changed by mere parol evidence, and not even by an oral agreement or understanding, but here tbe location of tbe line is in doubt, and tbe object is to find out where tbe line is, and oral evidence of tbe acts and conduct of tbe parties is admissible. Haddock v. Leary, supra.

In Hanstein v. Ferrell, 149 N. C., 240, evidence of a nature similar to that in this case, though not as strong, was held to be competent for tbe purpose of determining where a divisional line was, and tbe Court said: “We are of opinion that this is proper evidence to be submitted to tbe jury on tbe question of location, tending, as it does, to show, on tbe part of tbe owners and occupants of these lots, recognition of this adopted line and acquiescence in it as tbe true divisional line between them. Tbe doctrine by wbicb this testimony is held to be relevant to tbe inquiry is thus stated in 5 Cyc., p. 940: ‘Recognition of and acquiescence in a line as tbe true boundary line of one’s land, not induced by mistake, and continued through a considerable period of time, affords strong, if not conclusive, evidence that tbe line so recognized is tbe true line.’ And, while such recognition and acquiescence may not, as a rule, justify a departure from tbe true dividing line when otherwise clearly defined and established, tbe authorities cited fully justify this statement of tbe doctrine as applied to tbe facts presented on this appeal.” Citing Davidson v. Arledge, 97 N. C., 172; M. E. Society v. Akers, 167 Mass., 560. It seems to us that tbe Hanstein case is decisive of tbe question we are discussing.

Plaintiffs’ counsel have called our attention to certain evidence in regard to tbe width of this lot on tbe street, and tbe location of an alley ten feet wide in tbe rear, and also to their contention that Currin bad sold all of bis land except tbe Prize-House lot, as showing conclusively that tbe lot in question could not be located as contended by tbe defendants, as it would be much wider than represented on tbe map (168 feet instead of 135 feet). But these are all matters for tbe jury to consider. Tbe defendants say that tbe map shows that if you start at “A prime,” wbicb they contend is tbe true beginning corner and run witb the calls of their deed, tbe lot will be 135 feet wide and embrace tbe land in dispute.

Tbe defendants state in their brief: “If all tbe testimony as to tbe location of tbe fence and tbe rock at its end and tbe 35 years acquiescence by tbe Taylor family in tbe cutting of trees, building of stables, fencing tbe 30 feet of land, was admissible, and tbe deed, fence, and rock, *378bis Honor left in tbe record, tben tbe corner on the street 61 feet southeast of the prize-house was 30 feet east of tbe corner of tbe lot Taylor conveyed to Riggs and Biggs to Currin.” Tbis shows tbeir contention. Tbis is not a conclusive case for tbe Taylors, as argued for tbe plaintiffs,, but is one for tbe jury, and tbe learned judge so regarded it, as will appear from bis charge. Tbe evidence leaves tbe issue as to title and right of possession in grave doubt, and tbis doubt must be settled by tbe jury.

Tbe defendants excepted to tbis instruction: “If, however, you shall find by tbe greater weight of tbe evidence that tbis land in controversy is included within tbe boundaries of tbe land conveyed to Mrs. Taylor by Mr. Crews, tben you should answer tbe issue ‘Yes,’ and in that event .you need not further consider tbe claim of tbe other parties plaintiff.” His Honor afterwards charged as to tbe defendants’ contention and instructed tbe jury bow to answer tbe issues if they found that tbe line is where tbe defendants contend it is, but tbe instruction to which tbis exception was taken and quoted above, considered by itself, and without-proper reference to tbe defendant’s contention, and tbeir finding as to-it, was calculated to mislead tbe jury, as it was not tben properly qualified, and tbe other instruction was so widely separated from it. But we do not find it necessary to consider whether we should grant a new trial on tbis account, as tbe error already explained is sufficient for that purpose.

We conclude that there was error in rejecting evidence.

New trial.