{ "id": 11276509, "name": "Fruit v. Brower", "name_abbreviation": "Fruit v. Brower", "decision_date": "1823-06", "docket_number": "", "first_page": "337", "last_page": "341", "citations": [ { "type": "nominative", "cite": "2 Hawks 337" }, { "type": "official", "cite": "9 N.C. 337" } ], "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": "2 Hayw. 354", "category": "reporters:state", "reporter": "Hayw.", "case_ids": [ 11985051, 11985004 ], "opinion_index": 0, "case_paths": [ "/nc/3/0354-02", "/nc/3/0354-01" ] } ], "analysis": { "cardinality": 379, "char_count": 6674, "ocr_confidence": 0.305, "pagerank": { "raw": 2.447399508025178e-07, "percentile": 0.8037132666807988 }, "sha256": "597122535b48176c107bf4fe2f90136adaba3dab060749a7d1977f02eb2cd829", "simhash": "1:080b388a580865f7", "word_count": 1264 }, "last_updated": "2023-07-14T21:20:49.892283+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Fruit v. Brower." ], "opinions": [ { "text": "Per Curiam.\nThere was much conflicting evidence in this case, relative to where the old line was, of which it was the province of the Jury to judge. The Court instructed the Jury that iiie Plaintiff\u2019s boundary extended to Thomas Willborn\u2019s line wherever that was, notwithstanding that the corner D. and the line B. D. were marked as his corner and line.\nThis is in conformity with the case of Blount v. Benbury \u2014 (2 Hayw. 354) and many other cases that have* Arisen. A new trial is refused.", "type": "majority", "author": "Per Curiam." } ], "attorneys": [], "corrections": "", "head_matter": "Fruit v. Brower.\nFrom Randolph.\nA tract of land is granted in 1761. In 1784, another tract adjacent u granted, and calls for a course \u201c along the old Une to the beginning.\u201d In 1794 a corner and line are marked, as tlie corner and line of the tract of 1784, parallel to the old Una, and North of it. Held, that the 3inmarked in 1794 was not conclusive; that it was the province of the Jury to ascertain the true boundary, and that, if they believed it to be \u00abthe old line,\u201d the Plaintiff would go to it, notwithstanding she corner and line marked in 1794 as his line.\nTrespass quart clausum fregit. Pleas General issue\u2014 Zil>. ten. \u2014 Slat Lira. \u2014 License.\nThe Plaintiff claimed the lands described in the annexed Diagram, by the lines \u00c1. II. G. E. The Defendant claimed those described by the lines K. 13\u00bb D. O. L. R. S. T $ and the question in dispute as to boundary was. Whether the Plaintiff\u2019s tract was bounded oa the North by the line IL D. or A. E ?\nDIAGRAM.\nThe tract marked M. was granted to John McGee in 1761t, that marked P. was granted to Thomas Will-born in 17611 and that marked N. was granted to\u201eEsther Willborn in 1784. Esther Willborn conveyed N. to James Fruit in 1794, and James Fruit conveyed to the Plaintiff.\nThe grant to Esther Willborn was as follows: \u201c beginning at a stake, the corner of a tract she now lives on\u201d (she then lived on P.) \u201cand running North along McGee\u2019s line 80 poles to a black oak, then East 100 poles to a small black jack, then South 80 poles to a black oak corner, then West along the said old line 100 poles to the beginning.\u201d The Plaintiff alleged that the beginning was at a stake at C, and that the Mack oak called for as a corner to the third line, was at F. The Defendant insisted the beginning was at a stake at, 33, and that the black oak called for in the third line, was at I).\nThe grant to Thomas Willhorn, under whom the Defend ant claimed, was as follows : \u201c beginning at a black oak saplin ,\u201d (at D, as Defendant said,) \u201c then ranning South 61 chains to a white oak, (0) then West 28 poles to a red oak, York\u2019s corner, then west 6\u00bf poles to a white oak, (L) thence North 82^ chains to a white oak, (E) then West 10 chains to a hickory bush, (S) then North 19 chains to a white oak on McGee\u2019s line, (T) then along Ms line East 20 chains to a hickory, (K) then along Ms line North 10 chains to a stake, (B. as .Defendant contended, and C. according to Plaintiff\u2019s allegation) then, East 25 chains to the beginning.\u201d\nAs to the line C. F. it appeared that there were marked trees on it, two of which, as the surveyors judged from their external appearance only, might he as old as. the year 1761. The other trees on this line were of the same age with the trees on the lines A. E. and B. B, both of which were marked. It was not shewn on the trial who marked C. F, or for what purpose it was done.\nAs to the line A. E. It appeared that in the year 1797, the year after the Defendant purchased the tract P, Fruit, the Plaintiff) and himself, erected a stone at A. for the beginning of the land which Fruit had purchased \u00a91\u2018 Esther Willhorn j that there were on the line A. E, marked trees corresponding- in age with Fruit\u2019s deed j that Brower acquiesced in the corner A. and the line A. 33. as Fruit\u2019s boundary until the year 18 \u2014 when Fruit had his land processioned j after which Brower beginning at K. and running North along- McGee\u2019s line, discovered that the stone erected at A. was short of 10 poles, the distance called for in Thomas Willborn\u2019s grant, hut that the distance terminated at B. and Brower thenceforward claimed to B. it was cot shewn why, or by whom this line was marked.\nAs to the line JS. D. Defendant called a witness, Joues\u00bf w^\u00b0 s^&et^ that *\u2019nt' fifty-three years, he had lived in the neighborhood and heard the black oak at i>. called Thomas Willborn\u2019s corner \u00bf 1bat when he first knew it, it was a small sapun, and the marks were then visible, hut that as it grew In size the marks disappeared, lie further stated, that in 1794, on the purchase by Fruit from Esther Willborn, Elliot, who had been for many years surveyor of Randolph, surveyed the land in Fruit\u2019s presence, and then stopped at D. as Thomas Willborn\u2019s corner -, the old marks upon the black oak at D. had not then disappeared j Elliot marked it then as Fruit\u2019s corner, and also marked several dogwood trees as pointers, and running thence West to a stake at B. marked the line B. B. The pointers, it appeared, were still standing, and the lino B. D. corresponded in age with Elliot\u2019s survey and Fruit\u2019s deed.\nAs to the cerner at B. it appeared in opposition to the testimony of Jones, that the tree having been broken down by a storm, the heart for about an inch in diameter was retten, and that the lamina or annual growths from the rotten part, counted in 1822, forty-nine \u2014 that this tree was marked as the corner of Thomas Willborn\u2019s, and not cl Esther W iliborn\u2019s tract, in the same year with the lines B. D. and A. E. and most of the trees on C. F.\nOn these ibas the Defendant contended, 1st, that the evidence proved the line B. B. to be Thomas Willborn\u2019s line \u2014 and 2d, that if the evidence left the locality of Thomas Wiliborn'S line doubtful, yet the Plaintiff could not claim farther south than the Une B. B. as that line, and the corner ai D. were marked as his line and coiner when Esther W iliborn conveyed to him. That although the grout to Esther Willborn and the dee'! to Fruit, called for this line as running from the black oak cerner iJ along Iks said old litis West to a stake in MeG-ee\u2019s line-, yot it did not appear either from the grant 0; from her deed, that the said old line was Thob; Willborn\u2019s line, inasmuch us Ms line had not been previously men-uoned in the grant or deed, nor any old line except Me-Gee\u2019s line.\nThe Court instructed the Jury, that if from all the evidence, they believed that Thomas Will born's line was to the South of the line B. D, the Plaintiff was entitled to hold to his line, and the line from G. South was to be extended to it, notwithstanding the corner D. and the line B. \u00cd). were marked as his corner and line. Verdict for Plaintiff \u2014 new trial refused \u2014 -judgment and appeal-" }, "file_name": "0337-01", "first_page_order": 319, "last_page_order": 323 }