#### W. L. McQUEEN v. R. J. GRAHAM

(Filed 10 May, 1922.)

1. Boundaries — Evidence—Streams—Adverse Possession — Limitation of Actions — Trespass—Deeds and Conveyances — Color of Title.

Defendant’s trespass upon the lappage of land between the descriptions of the boundaries in the plaintiff’s and defendant’s deed, claimed by adverse possession by the defendant, was made to depend upon the location of a divisional line called for in the plaintiff’s deed as cornering in a log road at or near the east edge of Long Branch, but not calling for the run of the branch, and in the defendant’s deed as “beginning at a black jack in Yarborough’s corner, and runs with his line to McQueen’s line, thence as said line,” etc.: B'eld, evidence was competent in defendant’s behalf which tended to show that McQueen’s line was a straight one running near the branch, and under this evidence it was for the jury to determine the true dividing line upon the question of defendant’s color; and that it was not a presumption of law, under this evidence, that the true dividing line ran with the run of the branch.

2. Boundaries — Evidence.

Where the true dividing line between the plaintiff and defendant is in dispute in an action of trespass, it is competent for a witness to testify as a fact within his own knowledge as to whether the line claimed by the defendant is in conformity with the description in the plaintiff’s deed cornering the line at or near a certain stream, and running thence with its eastern edge, etc.

3. Same — Lappage—Adverse Possession — Color—Limitation of Actions.

Where the defendant claims the lands in dispute, which in an action of trespass is made to depend upon his adverse possession under color of title of a lappage between the description of a boundary in his own deed, and that of the plaintiff, even though the plaintiff may have shown a superior paper title, he may recover by showing actual and sufficient adverse possession under his own deed as color of title, as against the constructive possession of the plaintiff.

4. Same — Court Surveyor.

It is competent for a surveyor appointed by the court to plat the land in dispute to show the contentions of the parties in an action for trespass involving the question of lappage of the lands, to state that he obtained the location of the beginning corner upon the information given him by *492an adjoining owner, who was examined as a witness, and, at most, it would be harmless error in this case, as the corner was not found and the evidence could not affect the result.

5. Same.

Where an action of trespass depends upon the lappage of lands claimed by the parties, it is competent for a witness, testifying as a fact from his own knowledge, to state that the defendant’s deed covered the locus in quo, or as to the true location of defendant’s boundary.

6. Boundaries — Deeds and Conveyances — Acreage—Evidence.

Where the question of defendant’s trespass depends upon the question of lappage between the lines called for in the plaintiff’s and defendant’s deeds, evidence that the acreage given in the plaintiff’s deed would be greatly increased if the divisional line were located according to his contention, is relevant as a circumstance in the defendant’s favor, though ordinarily the acreage is no part of the description, and the latter will control, unless the lines or boundaries are in doubt.

7. Same — Court Surveyor.

It is competent for a surveyor appointed by the court, who has platted the contention of the parties to an action of trespass upon lands, depending upon' a lappage, to testify to the actual acreage called for by the description in the plaintiff’s deed, when otherwise competent and relevant to the inquiry.

Appeal by plaintiff from Kerr, J., at tbe October Term, 1921, of CUMBERLAND.

Averitt & Blackwell and- Sinclair, Dye c& Clark for plaintiff.

Cook & Cook and Bose & Bose for defendant.

Walker, J.

Tbe plaintiff brought this suit against tbe defendant, claiming ownership of a tract of land of 100 acres, in Cumberland County, and alleging that tbe defendant bad committed a trespass on tbe land. Tbe defendant admitted tbe ownership by tbe plaintiff of tbe land adjoining that of tbe defendant. He denied that be committed any trespass, and alleged that be was tbe owner of tbe disputed land under tbe deed referred to in bis answer. There was a survey ordered by tbe court, and tbe land was surveyed, when, as is alleged, tbe plaintiff was present with bis deeds, and when tbe defendant was not present, but sufficient information was obtained by tbe surveyor to ascertain tbe location of tbe disputed land, and it appears from tbe testimony of tbe surveyor and from bis plat that there was, as argued by defendant, a case of lappage 'of about 15 acres between tbe boundaries of tbe plaintiff’s deed and tbe boundaries of tbe defendant’s deed. It is true that tbe plaintiff showed a chain of paper title running back for some years, and there was evidence on tbe part of tbe plaintiff of possession. Tbe defendant also introduced paper title running back for some years, and *493be asserts tbat tbe evidence of bis possession of tbe fifteen acres lappage was direct and plenary, showing tbat be bad been in actual possession of tbe disputed territory since tbe date of bis deed, in 1903. He bad cut wood and timber on it, bad worked tbe turpentine, and bad actually cleared up and cultivated a portion of it.

Tbe plaintiff contended tbat Long Branch constitutes tbe defendant’s boundary, and tbe.defendant contended tbat it was tbe “McQueen line,” which is some ten or twelve chains east of tbe actual run of Long Branch. One issue, as to tbe ownership and possession of tbe land, was submitted to a jury, and tbe verdict was in favor of tbe defendant. Judgment, and plaintiff appealed.

We will take up tbe exceptions in tbe order adopted by tbe .plaintiff in bis brief:

Assignment of error No. 6 is treated by counsel first, and it seems to be taken entirely to tbe contention made by tbe plaintiff tbat tbe defendant’s deed covered no land east of Long Branch, for tbe reason that tbe first call of tbe defendant’s deed is as follows: “Beginning at a black gum in Yarborough’s corner, and runs with bis line ... to McQueen’s line, thence as said line.” If it bad been ascertained definitely by tbe jury, or bad been admitted tbat “McQueen’s line” was'in Long Branch, tbe plaintiff might have reason to complain, but it will be noted:

1. Tbat tbe deed to tbe plaintiff does not call for tbe run of Long Branch, but corners in “a log road at or near tbe east edge of Long Branch; thence with tbe east edge of said branch,” etc. Under this phraseology it can be reasonably contended tbat tbe line did not go to tbe run of tbe branch, but‘only skirted tbe edge of tbe swamp, “at or near tbe east edge of tbe branch.”

2. Defendant contends tbat if there were no other evidence than tbe deeds offered by tbe plaintiff as to tbe location of bis western line, tbe plaintiff might successfully maintain bis position, but there is evidence in tbe record to show tbat tbe “McQueen line,” as generally recognized in tbe community, was a straight line on tbe edge of tbe bill and on tbe east side of Long Branch. E. G. Blake stated that be was present when tbe land was surveyed, and tbe survey was made on tbe east edge of tbe swamp, and tbe line was a straight line. And tbe witness Yarborough testified tbat tbe “McQueen line” was a straight line along tbe east edge of Long Branch, and tbat there were marks on tbe line belowvtbe jxfint “B” as it appears on tbe blue-print.- Tbe witness, D. S. Jackson, stated tbat when Mr. Jessup, tbe county surveyor, ran tbe original line, be was present, and tbat tbe division line called for a straight line. If this testimony was to be believed by tbe jury, and bis Honor properly submitted tbe question to them, they bad the right, under tbe same, to answer tbe issue in tbe defendant’s favor.

*494Tbe authorities cited in plaintiff’s brief do not apply to the facts of this case. There was no dispute as to the location of Long Branch, but there was a dispute as to the location of what was known in the community as the “McQueen line,” and there was evidence on the part of the defendant to the effect that the McQueens had never had possession of any of the property west of the straight line contended for by the defendant as being the “McQueen line.” When the actual location of the McQueen line was in dispute, the court left the fact to be determined by the jury.

The defendant having introduced evidence of a deed covering the fifteen acres lappage, if it did cover it, and an actual adverse possession, under that deed, since 1903, he was entitled to have the matter submitted to the jury under a proper charge from the court, so that they could pass upon the issue as to whether the land belonged to the plaintiff or to him. Even though the plaintiff may have shown a senior paper title, if the defendant could show that he was in the actual adverse possession of the lappage under a deed which covered the land in dispute, and the plaintiff could only show constructive possession, then the jury could answer the issue in the defendant’s favor. Simmons v. Box Co., 153 N. C., at p. 261; Currie v. Gilchrist, 147 N. C., 648. In this case the Court held as follows: “We may, therefore, take it to be settled by this Court, by a long and unvarying line of decisions, that if the person who claims under the elder title have no actual possession on the lappage, such possession, although of a part only, by him who has the junior title, if adverse and continued for seven years, will confer a valid title for the whole of the interference, the title being out of the State.” See,also, Boomer v. Gibbs, 114 N. C., 76; Asbury v. Fair, 111 N. C., 251; Howell v. McCracken, 87 N. C., 399; Kerr v. Elliott, 61 N. C., 601. In the same case the Court holds that when there is a claim by a junior grantee of title by adverse possession, under color, of the lappage of certain lands, and his possession is of such character and so continuous and adverse as to indicate that he is claiming the land beyond the boundaries of the plaintiff’s deed, upon competent evidence, the question is one for a jury, under proper instructions from the court as to the legal effect of the possession.

We do not see how it can be seriously contended that defendant’s deeds do not constitute color of title. There is no contention that the deeds do not cover any land at all, or that they are in any way void for indefiniteness or uncertainty of description. If there was no doubt about the fact that the McQueen line was located as claimed by the plaintifE, it might then be contended with some reason that the deed covered no part of the land at all, but when several witnesses testify positively that they *495were present wben the division line was run, and that this division line is a part of defendant’s boundary, the judge did not err in allowing the jury to decide the controversy.

It appears from plaintiff’s brief that he mainly relied upon the assignment of error No. 6, and that his other exceptions relate only to the admission of evidence.

Plaintiff contends that it was not proper to allow the surveyor, Smith, to testify as to his efforts to find the beginning corner “A,” and what Yarborough, the adjoining landowner told him about it. This evidence does not seem to be material to the real controversy,, and if there was any error it was harmless. Singleton v. Roebuck, 178 N. C., 203, where the Court said: “It was competent for the witness, when asked about the corner at the point, to state that he knew where the stump was, and, besides, it appears to have been harmless and not prejudicial.”

Exceptions were taken to questions asked the witness Yarborough, as to whether certain descriptions included the land in dispute. In Singleton v. Roebuck, supra, cited to us, the Court held that it is competent for q, witness to state that a deed covers the land in dispute when he is stating facts within his own knowledge.

Other exceptions referred to in the assignments of error relate to the testimony of the witness Blake, as to the location of the line between McQueen and Graham, and he testified of his own knowledge that this line is a straight line. This testimony was clearly competent to show the location of the boundary line between plaintiff and defendant, which was a pertinent inquiry to be settled by the jury. He was not giving an opinion or hearsay, but was testifying to an actual fact, because he was present when the Jackson land on the west of the line was surveyed, and it appears that “the defendant’s land is a part of a tract known as the Jackson land.”

Certain exceptions relate to the cross-examination of plaintiff’s witness Smith, by which it was shown that the boundaries of plaintiff’s deed, if run to the edge of Long Branch, would include 156 6/10 acres instead of 100 acres, as appears from the description set out in the complaint. This Court has held in several cases that while ordinarily the number of acres mentioned in a deed constitutes no part of the description, yet, where there is doubt as to the location of the land, or some of the lines, evidence which tends to show the acreage may sometimes be relevant and important. In Currie v. Gilchrist, 147 N. C., 656, the Court used this language: “Ordinarily, the number of acres mentioned in a deed constitutes no part of the description, especially when there are specifications and localities given by which the land may be located, but in doubtful cases it may have weight as a circumstance in aid of *496tbe description, and in some cases, in tbe absence of other definite descriptions, may have a controlling effect.” See, also, Whitaker v. Cover, 140 N. C., 280; Harrell v. Butler, 92 N. C., 20; Baxter v. Wilson, 95 N. C., 137, and as said in Lumber Co. v. Hutton, 152 N. C., at p. 541: “Where the location or boundary is doubtful, quantity becomes important.” See, also, Peebles v. Graham, 128 N. C., 227; Brown v. House, 116 N. C., 866; Cox v. Cox, 91 N. C., 256. It was certainly competent for the court surveyor to testify as to the actual acreage according to the plaintiff’s contention, when he had made the official map and had actual knowledge of the facts.

The defendant emphasizes the fact, in his brief, that though the plaintiff lost on the issue submitted to the jury, he has now really more land than his deed calls for, but this is immaterial unless it may have some slight bearing on the location of the land in dispute, but we have not considered it in that light.

The crucial question is as to the location of the McQueen line, and as the evidence was not all one way, and there is some doubt upon the question, it presented a case for the jury.

The case of Rowe v. Lumber Co., 133 N. C., at marginal page (Anno. Ed.) 439, may be applicable here and show that the question raised, as to the location of the land, was a proper one for the jury. We there said: “The court seems to have excluded these deeds upon the supposition that this Court had ruled at the former hearing of the case that when Catskin Swamp was called for it meant the edge of the swamp, and that the line should stop there. We do not so understand the former ruling. It is true that Furches, C. J., in Rowe v. Lumber Co., 128 N. C., 301, said that certain authorities cited by him tended to sustain the view That a call to a swamp, and along a swamp, only goes to the swamp’; but by reference to other parts of the opinion, especially at page 302, it will be seen that he was referring to a call for an object on the margin of the swamp, and not to a call for the swamp generally, for he says: ‘But the calls on the other two tracts on the east side are to points on the margin or banks of the swamp, and thence with the swamp.’ We cannot think that the learned Chief Justice intended to repudiate the principle laid down in Brooks v. Britt, 15 N. C., 481, that where there is a call for a swamp it is for the jury to say whether the margin or the run is intended, for he cited that case as one of the authorities in support of what he had said at page 304. The last expression of the opinion must be qualified and restricted by the particular facts of the case to which it referred. We still adhere to the doctrine so well stated by Gaston, J., in Brooks v. Britt, supra, that where a swamp is called for, whether the run in the boggy and sunken land, or the margin of *497such, boggy and sunken land, is the call of the grant, depends ‘upon facts fit to be proved and proper to be passed upon by the jury’; so that in this ease, where there is such a call, it must be governed by that principle, and likewise, where there is a call for Catskin or Catskin Swamp or Catskin Creek, whether the call refers to the run or the boggy or sunken land, it must, under the same authority, depend upon facts ‘fit to be proved’ and proper to be considered by the jury. This ruling will apply to all deeds not calling for the run in such manner as to leave no doubt that it was intended as one of the lines of the tract.”

The court took the right view of the case, and no error is found in the record.

No error.