Iredell County NcArchives Court.....George Morrison, James Orbison V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 5, 2009, 6:18 pm

Source: Nc Reports
Written: 1819

Den on Demise of James Orbison v. George Morrison

From Iredell

November Term 1819

Questions of boundary, like all other questions of fact, depend on their own 
particular circumstances, where every shade of evidence, and every the most 
minute circumstances produces its effect. The artificial rules respecting 
boundary are intended only as guides in the application of circumstances, and 
not as fixed laws, to be applied indiscriminately to all cases. The injustice 
complained of in our boundary decisions, has been produced by considering 
these artificial rules, not as mere guides, but as fixed laws, and applying 
them indiscriminately to all cases, whether they fit them or not.

It is the province of the Court to expound to the Jury the law connected with 
the facts under discussion, but not to express an opinion on the facts. If, 
therefore, the Court express an opinion on the facts, a new trial will be 
awarded.

The grant under which the lessor of the Plaintiff claimed the lands, was 
issued in 1779, and described them as adjoining the lands of Nesbit, King and 
M'Korkle. The beginning corner was a post oak on Nesbit's line; thence along 
his line 198 poles to his corner, a pine: thence south 260 poles to a post 
oak; thence east to a white oak; thence north, &c. A south course from the 
pine corner runs directly across Nesbit's tract of land, a distance of 180 
poles, and extends thence 80 poles to King and M'Korkle's line.

Nesbit's line from the pine corner runs south 30 degrees east 190 poles to a 
Hickory; and if this course be continued to King and M'Korkle's line, it will 
pass to the east of the field of which the Defendant has possession. The 
Defendant contended that the lessor of the Plaintiff was bound to pursue this 
course, and that the law would not permit him to run across Nesbit's land, and 
extend his line beyond it, nor to turn from Nesbit's corner Hickory, west 
along Nesbit's line, to a point where a line drawn from Nesbit's corner pine 
would cross it, and thence south to King and M'Korkles' line; and if the law 
be in his favor on this point, he was not guilty of the trespass and ejectment 
charged in the declaration. The Court adjudged this point against the 
Defendant.

The Defendant then alleged that he had been seven years and more in the actual 
possession of the lands, claiming them adversely and under cover of title; and 
he offered in evidence two grants from the State, one bearing date in 1801, 
which covered part of the lands claimed by the lessor of the Plaintiff, and 
another bearing date in 1809, for other parts of said lands adjoining those 
covered by the grant of 1801. The following diagram shews the boundaries 
called for in all the grants mentioned in the ease, and also shews Nesbit"s 
lines and King and M'Korkle's line:

A. B. C. D. are the boundaries of Nesbit's tract. 

G. F. is King and M'Korkle's line.

A. B. E. F. P. S. P. V. are the boundaries called for in the grant to Orbison.

D. C. H. G. F. E. are the boundaries called for in the grant to M'Koy, issued 
in 1801.

B. C. H. F. N. are the boundaries called for in the grant to M'Koy, issued in 
1809.

B. I. is the line which runs across Nesbit's tract of land.

When the surveys were made for the grants which Defendant offered as colour of 
title, no lines nor courses were marked; each grant, called either for the 
corners and lines of old surveys, or for course and distance to stakes. These 
grants were not registered until after the expiration of seven years or more 
from the time Defendant took possession, nor until within a year or two before 
the trial of this suit; nor was it, known until about the time said grants 
were registered, that they were in existence.

The Defendant, about ten years ago, erected a house near the south line of the 
two tracts covered by the said grants, the same being also the line of King 
and M'Korkle. The Defendant took possession of the house, and has lived in it 
ever since, as tenant to M'Koy, the grantee. He had cleared a field containing 
about fourteen acres, part of the tract covered by the grant of 1809, and part 
on that covered by the grant, of 1801.

Five years before the institution of this suit, the lessor of the plaintiff, 
who had been living on the northern part of the tract covered by his grant, 
for twenty years and more, employed a processioner, and with the processioner, 
entered upon the lands in dispute, claiming them as his own, and had the 
boundaries of his tract processioned, as the act of Assembly directs. The 
Defendant and his lessor, M'Koy, were with him during great part of this 
survey, and during the survey of that part of King and M'Korkle's line, which 
Morrison's field adjoins.

The Defendant entered into the common rule, and defended as to all the lands 
covered by the, grants of 1801 and 1809, and which were covered by the grant 
to the lessor of the Plaintiff; and insisted that his possession, for more 
than seven years, under the colour of title which he had offered in evidence, 
had barred the right of entry of the lessor of the Plaintiff, not only as to 
the lands included in his, the Defendant's fence, but as to all the lands in 
dispute.

The Court charged the Jury, that the possession which is to bar the right of 
entry, must be an actual possession of at least part of the lands covered by 
the colour of title under which the possession is held; that this possession 
must be accompanied with a claim, notorious in the neighborhood, to the 
boundaries called for in the colour of title: that, the law required title to 
accompany possession, in order to shew the extent of the possessor's claim; 
and that it was necessary not only that the possessor should make known his 
colour of title for the space of seven years, but should also make known 
during the same time, the boundaries therein called for: this he might do, 
either by shewing his deed or grant to his neighbours, and pointing out his 
lines, or by registering his deed or grant, and giving notice that he held 
under it. That in this case, the Defendant had done neither: his possession 
was known to the neighborhood, it was true; but he had given no notice that, 
he claimed the possession under colour of title, nor had he made known the 
boundaries to which he claimed, and to which he wished his colour of title to 
avail him: that, therefore, his possession had not barred the right of entry 
of the lessor of the Plaintiff, even as to the lands included in his fence.

The Court also charged, that the entry upon the lands and survey of the 
boundaries made by the lessor of the Plaintiff five years before, had defeated 
the Defendant's possession, so that no bar had been created.

The jury gave a verdict for the Plaintiff. A rule for a new trial was 
obtained, and it being discharged, the Defendant appealed.

Henderson, Judge: It is the province of the Court to expound to the Jury the 
law connected with the facts under discussion, but not to express an opinion 
on the facts, much less to decide them. The boundaries of deeds and grants are 
questions of fact, or at least, of law and facts combined, and belong 
exclusively to the Jury. It was an error therefore in the Judge to undertake 
to decide that the second line, of the lessor of the Plaintiff's patent run 
from B. to I: and if it was a conclusion of law drawn from the facts, it does 
not appear that even those subordinate facts were either admitted or found by 
the Jury. Besides, were we here to act the part of the Judge below, we have 
not the evidence which the case no doubt affords. It is not shewn whether 
there are marked trees from B. to I. and if there be, at what time and on what 
account made; whether they correspond with the date of Orbison's deed, whether 
there is a post oak marked as a corner at I. its date, &c. whether there are 
marked trees between I. and H. whether there are marked trees on the dotted 
line from C to where it intersects M'Korkle's line, whether there is a post 
oak marked at its intersection, and whether Nesbit's line B. C. was openly and 
notoriously known in the neighborhood, when Orbison obtained his grant, or if 
it had only that notoriety which ordinary wood lines have. All these are facts 
bearing on the question, "how does Orbison's second line run?" which we have 
no means of knowing, and which the Judge below, and of course we, have no 
right to pass on. It is by an adherence to these artificial rules found in our 
books, and considering them as fixed laws, and applying them indiscriminately 
to all cases, whether they fit them or not, that such monstrous injustice has 
been done in our boundary decisions; at many times embracing several thousand 
acres, when only a few hundred were contemplated by the parties. The fact is, 
that questions of boundary, like all other questions of fact, depend each on 
their own particular circumstances, where every shade of evidence, and every 
the most minute circumstance, produces its effect; and we might almost as well 
attempt to lay down rules of presumption to guide the conscience of a Jury, as 
rules by which boundary shall be ascertained. The sole question is, where do 
the lines called for in the deed or patent, actually run? I am far from saying 
that I, as a Juror, would have decided even from the evidence appearing upon 
the care that is sent here, differently from what the Judge did; but I think 
he had no right to decide at all.

The rule for a new trial must be made absolute.


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