CARRAWAY v. WITHERINGTON, 4 N.C. 694 (1818)

DEN ON DEM. OF CARRAWAY AND WIFE v. DANIEL WITHERINGTON. — TERM, 275.

Supreme Court of North Carolina
(January Term, 1818.)

Where the patent described the land as lying on the north side of a river, and the line in dispute called for “a pine on the Marsh Branch, then along the said branch 320 poles, thence to the beginning,” and the branch meets the

Page 496

river at a shorter distance, it was held that the branch was the boundary, and the mouth of it the corner of the land covered by the patent, and that the distance was to be disregarded.

THIS cause was tried before RUFFIN, J., at SAMPSON, October Term, 1817, and a verdict found, under the charge of the court, for the defendant. The plaintiffs moved for a new trial upon the ground of misdirection by the judge, which was refused; and the plaintiffs prayed for and obtained an appeal to the Supreme Court. The land in dispute is represented in the annexed diagram by the figures 1, 6, and the letter G., and is in the defendant’s possession. The lessors of the plaintiff claim title under a patent to G. Kornega, in which the land is described as “a tract containing 290 acres, lying on the north side of the northeast branch of Cape Fear River, beginning at a maple below Munse’s ford, thence N. 60 degrees E. 94 poles to a red-oak; thence S. 36 degrees E. 200 poles; thence N. 63 degrees E. 60 poles; thence N. 70 degrees, E. 52 poles to a pine on the Marsh Branch; thence along said branch 320 poles; thence to the beginning.” The beginning maple is identified, and stands on the north side of the river at A in the plat; and the several lines and corners to the pine, inclusive are also identified, and correspond with the courses, distances and corners called for in the grant, and are (695) delineated in the plat by the lines A, B; B, C; C. D, and D, E. The confluence of the river and Marsh Branch is at F, and the distance along the branch between E and F is only 214 poles. From F to G, crossing the river, is 106 poles, making with E F down the Marsh Branch, 320 poles in the whole from E to G, which is called for in the patent as the length of line from the pine. The line F G is not in the same course with the general direction of the Marsh Branch, which has a winding, irregular course. There are no marks between E and F or between F and G, and no proof was offered of an actual survey of either of those lines.

It was contended for the plaintiff that the line from the pine at E should be extended to G, so as to give the full distance of 320 poles, and to make G A the last line of the tract, and therewith include (697) the defendant’s possession at H. The presiding judge instructed the jury that inasmuch as the patent described the land to be “on the north side of the river,” and after calling for the pine on th Marsh Branch, gives a line running thence “along said branch” (without an course) “320 poles,” and no proof was given of an actual survey of those lines, the branch was the boundary, and the mouth of it the corner of the land covered by the patent; and that no regard was to be paid to the distance in this case; consequently, that the lessors of the plaintiff had no title to the lands in dispute, and the defendant was, in law, entitled to their verdict.

Page 497

Regular conveyances from the patentee, Kornega, to the lessor of the plaintiff were produced, and the defendant’s grant, issued after

[EDITORS’ NOTE: THE DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE 4 N.C. 497.]

Kornega’s. The question for the decision of the Supreme Court is whether upon the foregoing statement and the construction of Kornega’s patent

Page 498

the direction given by the court to the jury was right or not. If right, then the rule for a new trial to be discharged; if wrong, the rule is to be made absolute.

PER CURIAM.

The court did right in telling the jury that as the patent described the land to lie on the north side of the river, and after calling for a pine on
the branch, gives the line along said branch, the distance was to be disregarded and the line stopped at the mouth of the branch.

Let the rule for a new trial be discharged.

NOTE. — See the cases referred to in the note to Bradford v. Hill, 2 N.C. 22, and also the cases referred to in the note to Person v. Rountree, 1 N.C. 69.

(698)