{ "id": 11272931, "name": "E. D. SCULL, et als., v. W. D. PRUDEN, et als.", "name_abbreviation": "Scull v. Pruden", "decision_date": "1885-02", "docket_number": "", "first_page": "168", "last_page": "175", "citations": [ { "type": "official", "cite": "92 N.C. 168" } ], "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": "3 Murph., 539", "category": "reporters:state", "reporter": "Mur.", "case_ids": [ 8694873 ], "opinion_index": -1, "case_paths": [ "/nc/7/0539-01" ] }, { "cite": "2 Ired., 457", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8695734 ], "opinion_index": -1, "case_paths": [ "/nc/24/0457-01" ] }, { "cite": "1 D. & B., 65", "category": "reporters:state", "reporter": "D. & B.,", "opinion_index": -1 }, { "cite": "4 Dev., 370", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11276652 ], "opinion_index": -1, "case_paths": [ "/nc/15/0370-01" ] }, { "cite": "4 Dev. & Bat., 206", "category": "reporters:state", "reporter": "Dev. & Bat.", "opinion_index": -1 }, { "cite": "3 Murph., 539", "category": "reporters:state", "reporter": "Mur.", "case_ids": [ 8694873 ], "opinion_index": 0, "case_paths": [ "/nc/7/0539-01" ] }, { "cite": "2 Ired., 457", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8695734 ], "opinion_index": 0, "case_paths": [ "/nc/24/0457-01" ] }, { "cite": "4 Dev., 370", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11276652 ], "opinion_index": 0, "case_paths": [ "/nc/15/0370-01" ] } ], "analysis": { "cardinality": 607, "char_count": 15670, "ocr_confidence": 0.442, "pagerank": { "raw": 2.668609834585333e-07, "percentile": 0.8255844259646026 }, "sha256": "1a06653dc7396c2776e1556fede3f33e811042e36e9f60c536d5754e01330652", "simhash": "1:0f0b897ae0a44032", "word_count": 2832 }, "last_updated": "2023-07-14T20:45:21.083688+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "E. D. SCULL, et als., v. W. D. PRUDEN, et als." ], "opinions": [ { "text": "Asi-ie, J.\n(after stating the facts). The locus in quo is a wharf on the shore of the Chowan river, and the question presented by the record is whether the description in a deed, executed by Thomas B. Sharp to Sophia Smith, under which the plaintiffs claim, covers the wharf.-\nThis involves a construction of the said deed. The subject-matter of the conveyance is described in the deed as follows: \u201cThe Mount Pleasant Fishery, with the land attached to the same, supposed to be one thousand yards in length, bounded by the brink or brow of the hill on one side, and the river on the other, from one end of the beach to the other.\u201d\nThere were two creeks emptying into the river above and below the place used for a fishery and known by the name of the \u201c Mount Pleasant Fishery,\u201d about twelve hundred yards apart, at a point some thirty-three yards above the lower creek called Nowells. At the upper edge of a marsh making into the river, there was a bluff or ridge which widened out as it extended up the river to the width of one hundred yards, leaving a space used as the fishery about three hundred yards in length, and known as the \u201c Mount Pleasant Fishery.\u201d A short distance above the upper end of this space, the ridge or hill approached within three or four feet of the river and continued along to the water\u2019s edge up to within five feet of Simon\u2019s creek, except at a point about two hundred and fifty yards above the place used for a fishery, where there was a ravine breaking into the river, at which there was a wharf. The distance from the upper edge of the marsh above Nowell\u2019s creek was 966J yards.\nThe Avharf is the loom in quo. The plaintiffs contend that the deed under which they claim by its description covers the wharf, and that the distance called for in the deed is the controlling specification.\nThe defendants insist that, the proper construction of the deed is, that only so much of the beach as was actually used as a fishery with the land lying between that and the ridge, is all that Avas conveyed by the deed, and it did not cover the loous in quo.\nIn questions of boundary, Avhat are the boundaries of a tract of land is a question for the Court; AAdiere are the boundaries is a question for the jury; and in the construction of deeds, the first rule is, that the intention of the parties is, if possible, to be supported; and the second rule is, that this intention is to be ascertained by the deed itself, that is, from all the parts of it taken together. Dismukes v. Wright, 4 Dev. and Bat. 206 ; Proctor v. Pool, 4 Dev. 370.\nIn reading the description of the deed- from Sharp to Smith, AAre think it is manifest that the intention of parties AAras to convey that part of the beach of the ChoAvan river Avhich AAras known as the \u201c Mount Pleasant Fishery,\u201d and actually used as a fishery, with the land attached, Avhich AAras necessary and convenient for operating the fishery \u2014 that is, not only a place for landing the seine but, as an appurtenance thereto, a place for drying the seine after drawing. Hence the description of the \u201c Mount Pleasant Fishery,\u201d with the land attached, bounded by a bluff or hill and - the river. The name of the fishery, the natural boundaries of the bluff and the river fully ascertain the corpus. Nothing more was required to identify and ascertain the subject matter of the grant. The additional specification of the length of the beach, could not affect an identification so completely established.\nWhen the subject matter of a conveyance is completely identified, by.its name, by its localities, and by certain other marks of description, the addition of another particular which does not apply to it will be rejected as having been inserted through misapprehension or inadvertance. Belk v. Love, 1 D. and B. 65.\nHere the name of the subject-matter of the conveyance is given, to-wit, the \u201cMount Pleasant Fishery,\u201d with the further marks of description, the bluff or hill on one side, and the river on the other. \u201cThe name of a place,\u201d says Chief Justice Buffin in Smith v. Low, 2 Ired., 457, \u201clike that of a man, may and does serve to identify it to the apprehension of more persons than a description by ooterminous lands and water-courses, and with equal certainty. For example, \u2018 Mount Vernon/ the late residence of General Washington, is better known by that name than by a description of it as situated on the Potomac river and adjoining the lands of A, B and C.\u201d And in Reddick v. Leggat, 3 Mur., 539, it was said by Chief Justice Henderson, \u201cwhen the thing referred to has no particular name, and there are superadded to the general description specifications, or localities, all those specifications or localities must concur to point out the object, otherwise it does not point out the thing intended; as if I grant all my lands in Dale, which I purchased of J. S. and which arc in the tenure of -J. N., all these specifications must concur; otherwise nothing is described. But if I grant White Acre, which I purchased of J. S., and which descends to me from my father, White Acre will pass, although I purchased it of J. N. and not from J. S., and although it descends to me from my mother and not my father.\u201d And in the sam\u00e9 case, by way of illustration, the learned judge says, \u201cif one grants one thousand acres and no more, bounded as follows, &c., and two thousand acres are included in the boundaries, the two thousand acres will pass, as tbe butts and bounds are more certain than quantity.\u201d These authorities are cited to show the controlling effect of the name of the place in the description of a deed. In the deed under consideration the name of the place is given, to-wit, the \u201c Mount Pleasant Fishery.\u201d What is a fishery? \u201cIt is a place prepared for catching fish with nets or hooks.\u201d\nThis term is commonly applied to the place of drawing a seine or net. 1 Bouvier\u2019s Law Dictionary, 528. This fishery then, as described by its name, was that part of the beach of the river prepared and used for drawing the seine. We do not see how the description could apply to a part of the beach never used for such a purpose, and which could oxrly be used for fishing \u201cat great \u2022cost and by cutting away the bank and building wharves.\u201d We concur with His Honor in holding that the description of length of plaintiffs\u2019 line, supposed to be one thousand yards, is not sufficiently definite to guide the jury in ascertaining the lines of the plaintiffs, because there is no certain point ascertained for the beginning and end of the line, and the distance is not fixed with \u2022exactness. A description so indefinite must always yield to others that are less uncertain. The description is by no means relieved from its uncertainty, as contended by plaintiffs\u2019 counsel, by the superadded words \u201c from one end1 of the beach to the other,\u201d for the case states that \u201cthe river shore is not generally called beach, except when it is used as \u00e1 fishery, when it is so called.\u201d\nOur opinion is His Honor has put a proper construction upon the deed, and that there was no error in giving or refusing instructions.\nNo error. Affirmed.", "type": "majority", "author": "Asi-ie, J." } ], "attorneys": [ "Mr. R. B. Peebles, for plaintiffs.", "Messrs. Day & Zollicojfer and Winborne & Bro., for defendants." ], "corrections": "", "head_matter": "E. D. SCULL, et als., v. W. D. PRUDEN, et als.\nDeed \u2014 Description of Land in \u2014 Boundary.\n1. Where laud conveyed by a deed was described as \u201c The Mount Pleasant Fishery, with the land attached to the same, supposed to be one thousand yards in length, bounded by the brink or brow of the hill on one side and. by the river on the other, from one end of the beach to the other\u201d; Held, only that part of the beach known as the \u201cMount Pleasant Fishery,\u201d and the land necessary and convenient for using it passed, there being no certain beginning point,\n2. The name of a place may serve to identify it, as well as adjoining lands or water courses.\n45. Where the subject-matter of a conveyance is completely identified by its name, by its localities aud by other certain marks of description, the addition of another particular which does not apply to it, will be rejected as sur-plusage.\n4. Natural objects and boundaries will govern quantity in a deed. So, if A grants one thousand acres, and describes it by boundaries, all the land within the boundaries will pass, although it contain two thousand acres.\n5. In questions of boundary, what are the boundaries, is a question of law; where they are, is question of fact.\n(Dismukes v. Wright, 4 Dev. & Bat., 206; Proctor v. Pool, 4 Dev., 370; Belk v. Love, 1 D. & B., 65; Smith v. Low, 2 Ired., 457; Reddick v. Leggett, 3 Murph., 539, cited and approved).\nThis was a civil action for possession of laucl, tried at the Fall Term, 1883, of Hertford Superior Court, before Avery, Judge, and a jury.\nThe plaintiff claimed the land in controversy under a deed made to one Stephen Smith by Thomas B. Sharp, which contained the following description of the land conveyed, to-wit: tl The Mount Pleasant Fishery,\u201d with the land attached to the same, supposed to be one thousand yards in length, bounded by the brink or brow of the hill on one side and the river on the other, from one end of the beach to the other.\nIt was admitted that the title was out of the State, and that the plaintiffs were the owners of and entitled to the possession of all the land embraced within the above recited description; but it was insisted by the defendants that the loons in quo was not embraced therein.\nIt was in evidence that Simon\u2019s Mill Creek and Nowell\u2019s Mill Creek emptied into Chowan River from the west. That the distance from one of said creeks to the other was 1,299 yards; that from Nowell\u2019s Mill Creek up the river towards Simon\u2019s Mill Creek for a distance of thirty-three yards was a marsh extending to the water\u2019s edge. That at the upper end of said marsh was a hill or ridge which extended up the river to within about five yards of Simon\u2019s Mill Creek. That the distance between the river and said hill or ridge varied from three or four feet to one hundred yards in width. That from the lower end of said hill or ridge to the upper end of the Zooms in quo was 990-|- yards. That the loous in quo or wharf was about 270 yards below Simon\u2019s Mill Creek.\nThere was evidence tending to show that there was continuous beach from about thirty-three yards above Nowell\u2019s Mill Creek to about thirty yards below Simon\u2019s Mill Creek, and that one part of it was about as well adapted to the purpose of fishing as the other; only about 300 yards of the beach was actually used for landing the seine by those who operated the \u201cMount Pleasant Fishery,\u201d and the upper windlass of the fishery did not \u2022extend up the river as far as the locus in quo or Mount Pleasant Wharf.\nThere was evidence tending to show that from the beginning of the bluff thirty-three feet above Nowell\u2019s Creek at the marsh, to 265 feet above the wharf and in thirty feet of Simon\u2019s Mill Creek, there was a continuous bluff or bank and no marsh. That the bluff and bank varied greatly in its distance from the water\u2019s, edge. That from the beginning of the same near Nowell\u2019s Creek up to about the lower windlass of the Mount Pleasant Fishery the water at high tide beat against the bluff or bank for forty or fifty yards. At that point it begins to recede to about what is actually used as a fishery and then again gradually approaches-the water, to a point about ten feet, above the upper windlass and 200 or 250 yards below the locus in quo, at which point the bank approaches so closely to the water, that at high tide it beats against its base, and continues thus close to it, till it reaches Simon\u2019s Creek, except at the locus in quo, where a narrow ravine or gulch makes out from the river of about twenty-five yards in width. That between the points near the upper and lower windlass above named a natural beach seems to be formed, above and below which, respectively, a seine could only be fished, if at all, at great cost and by cutting away the bank and building Avhar-ves. That the river-shore is not generally called beach, except when it is used as a fishery, when it is so called.\nIt was admitted that if the land claimed was not covered by the description in the deed, it belongs to the defendants.\nThe plaintiffs asked in writing the following instructions, to-wit:\n1st. That the brink or brow of the hill, as described by the witness, on the one side, and the Chowan River on the other side,, and the end of the beach lying between said river ancl said hill, are the boundaries of the land conveyed to Sophia Smith by Thomas B. Sharp by the deed offered in evidence by the plaintiffs.\n2. That if the jury is satisfied from the evidence that the beach described by the witness begins at the marsh adjacent to Simon\u2019s Creek, and extends down the river to the marsh at Nowell\u2019s Creek, then the plaintiffs are entitled to recover the lands described in the pleadings.\n3. That if the jury is satisfied that the beach described by the witness begins at the mouth of Simon\u2019s creek and ends at the mouth of Nowell\u2019s creek, the plaintiffs are entitled to recover the loans in quo.\n4. That in questions of boundary the distance called for by the deed must prevail unless there be some other description less liable to mistake to control it \u2014 as where the distance called for was one thousand yards in length from end to end, and the premises described as at the Mount Pleasant Fishery, the line must continue to the end of the one thousand yards, although it goes beyond the Mount Pleasant Fishery.\nThe Court refused to give any of the said instructions, but instructed the jury as follows, to-wit:\nThe plaintiffs, bringing an action to recover possession, must recover, if at all, upon the strength of their own title, and, therefore, the burden is upon them to show, by a preponderance of testimony, that the boundaries set forth in their deeds cover and include the defendants\u2019 possession. The Court, as to the calls in the deed from T. B. Sharp to Sophia Smith, which is the description relied upon by the plaintiffs, held,\n''(1) That the description of length of plaintiffs\u2019 line, supposed to be one thousand yards, is not sufficiently definite to guide the jury in ascertaining the lines of the plaintiffs, because there is no certain point ascertained for the beginning or end of the line, and the distance is not fixed at exactly one thousand yards;\n(2) That the plaintiffs cannot hold or recover any land, except so much of the beach or shore as was actually used for the purpose of fishing, and extending out from the river to the brink or brow of the bluff or hill opposite to that portion of the beach used as a fishery;\n(3) That the description in the plaintiffs\u2019 deed is upon its face ambiguous, and unless the plaintiffs have shown, by parol testimony, where the lines of their deed run, and also that they include the possession of the defendants at the wharf, the plaintiffs cannot recover;\n(4) That if the plaintiffs have satisfied you, by a preponderance of testimony, that the wharf would be included in a boundary ascertained by running a line from the highest point on the shore or margin of the river actually used as a fishery, down the river to the lowest point actually used as a fishery, and from the point last named to the brow of the hill opposite the point of beginning, and thence to the beginning, the plaintiff must recover, and not otherwise.\u201d\nThe plaintiffs, in deference to the opinion of the Court thus expressed, submitted to a non-suit, and appealed, and assigned the following errors:\n\u2022 1. In refusing to give each of the instructions asked;\n2. In the instructions as given.\nMr. R. B. Peebles, for plaintiffs.\nMessrs. Day & Zollicojfer and Winborne & Bro., for defendants.\nS.wiTn, C. J., did not sit on the hearing of this case." }, "file_name": "0168-01", "first_page_order": 202, "last_page_order": 209 }