Opinion
(June Term, 1834.)
A swamp is a natural boundary, and if a deed calls for one, the course and distance must be disregarded. But in such a call, whether the margin of the swamp or the run of it is intended, is a matter of fact which is, upon the evidence offered, to be found by the jury.
TRESPASS QUARE CLAUSUM FREGIT, tried before his Honor, Settle, J., at PITT on the last circuit.
Mordecai for the plaintiff.
The Attorney-General for the defendant.
PLEA — not guilty.
There were several points made in the case which it is not necessary to state, the only one discussed in this Court (482) being the following: The defendant claimed under a patent which described the land thereby granted as "lying on the northeast side of Swift Creek Swamp, on the east prong of said creek, beginning in the said swamp on Earl Granville's line, running with said line east ninety-six poles to a pine; thence south forty degrees east four hundred poles; thence west to the said swamp, then up the said Swift Creek Swamp with the windings thereof to the first station." His Honor informed the jury that where a natural boundary was called for in a grant, the course and distance were disregarded and the line was extended to the natural boundary — that a swamp was a natural boundary, and that if there was a certain and known channel for the water of the swamp to run in, the call in the defendant's deed went to the said swamp, and should be extended to that channel without regard to course or distance. A verdict was returned for the defendant, and the plaintiff appealed.
We have not the right to examine nor the disposition to inquire whether the verdict of the jury be correct or incorrect. Our duty confines us to the propriety of the instructions which were given by the judge, and which have been excepted to by the appellant. Although in the main we approve of these instructions, we think there is one error in them which may have had a material influence upon the jury, and which requires that the judgment be reversed and a new trial awarded.
The matter in controversy depended upon the ascertainment of the boundary of the defendant's grant. This was described as "lying on the northeast side of Swift Creek Swamp, or the east prong of said creek, beginning in the said swamp, on Earl Granville's line, running with said line, east ninety-six poles to a pine; thence south 40 degrees east four hundred poles; then west to the said swamp; then up the said Swift Creek Swamp with the windings thereof to the first station." (483) His Honor was unquestionably correct in laying it down as a principle in law, that the swamp was a natural object, more certain, and therefore more worthy of reliance than the distances called for in the grant; that this swamp was in law a boundary of the patent, and that the defendant's grant must be extended to it, if the distances would not reach, and restrained by it, if these distances overreached it. But we are of opinion that he erred in pronouncing that if there was a certain and known channel for the water to run in said swamp, the call of the grant was for that run. Whether the run in the boggy and sunken land, or the margin of such boggy and sunken land, was the call of the grant, depended upon facts fit to be proved, and proper to be passed upon by the jury. If, when the grant issued, the low grounds were known as the Swift Creek Swamp, and the run or channel was not termed the swamp, but had another appellation, such as Swift Creek, or east prong, or any other distinctive name, then the call of the grant was for those low grounds, and not for the run. If, on the contrary, the run was then known as Swift Creek Swamp, and the bottom lands were distinguished from it as the low grounds of that swamp, then indeed, the call was for the run, and not for the low grounds. If each were known by the same appellation, and indiscriminately called Swift Creek Swamp, then there were two natural objects, either of which corresponded with the call of the grant, and which of these was intended, might and ought to be determined by reference to other matters of description in the grant, or to extrinsic facts, rendering the one or the other more probable.
PER CURIAM. Judgment reversed.
Cited: Becton v. Chestnut, 20 N.C. 482; Mizell v. Simmons, 79 N.C. 193; Strickland v. Draughan, 88 N.C. 318; Redmond v. Stepp, 100 N.C. 219; Rowe v. Lumber Co., 128 N.C. 204; Ward v. Gay, 137 N.C. 401; Rowe v. Lumber Co., 138 N.C. 466.
(484)