Lenoir County, NC - LaRoque v. Kennedy, 1911

                            ~~~~~~~~~~

             O.K. LaRoque and Wife v. W.L. Kennedy
                   (Filed 25 October, 1911)

1. Witnesses - Ancient Documents - Comparison of Handwriting - Evidence
On the admissibility of testimony of witnesses as to the genuineness of
handwriting of ancient documents by comparison with that of other like
documents free from suspicion, when the witness has had full opportunity
to observe and note them, and he states that he has thus been enabled
to form a satisfactory opinion as to the handwriting of the ancient
document to question, Nicholas v. Lumber Co., ante, 59, cited and 
approved as applicable to the facts in this case.

2. Evidence - Deeds and Conveyances - Description - Identity of Lands -
Objections and Exceptions - Procedure
In an action involving the question of title to lands it is competent to
offer a certified copy of the deed and identify the handwriting of the
officer who made the certificate, and if thereafter the party who thus
introduces the deed in evidence fails to locate the land within its
boundaries or description, the opposing party should by motion call it
to the attention of the court and ask that the deed be withdrawn.

3. Same - Intrinsic Identification - Description of Witnesses
When a deed to lands concerning which the title is in dispute has been
properly introduced in evidence, it is not essential that evidence of
location under the description or boundaries of the deed come from
defendant or from living witnesses; for the descriptions contained in
the deed may indicate where the land is situated without extrinsic 
proof; and in this case, from the minute description of the witnesses,
the land is sufficiently identified by an ancient mill located on "South-
West Creek."

4. Damages - Ponding Water - Evidence
In this action for damages for ponding water back upon plaitiff's land,
the testimony of a witness, to the effect that some fifteen years previous
he had cut cypress timber up beyond the pond and had floated it to the
pond, was properly admitted to show the conditions up beyond the pond
bearing on the controversy.

5. Appeal and Error - Contention of Parties - Admissions - Instructions -
Procedure
When made for the first time on appeal, an exception to the charge that
it did not correctly state the admissions of the parties will not be
considered, as this should have been called to the attention of the 
judge at the time.

6. Damages - Ponding Water - Adverse User - Prescriptive Right - Easement
When damages are claimed by plaintiff to his land by reason of defendant's
elevating his dam and thus raising the level of the water on the lands
of the former, and defendant claims a prescriptive right by adverse user
for twenty years or more, testimony tending to show that the water had
been maintained at the same or a higher level by a former dam located
at the same place as the one complained of at a date more than twenty
years previous, and a continuous maintenance at that level, with 
evidence of water-marks on trees, etc., sustaining defendant's contention, 
is sufficient to sustain a verdict that an easement had thereby been acquired.

7. Same - Limitation of Actions - Ouster - Adverse Possession
In defense to an action for damages for ponding water back upon 
plaintiff’s land, the defendant offered evidence tending to show that 
he and those under whom he claimed had maintained the level of the 
water as it then was or at a higher level, for more than twenty years, 
etc.: Held, sufficient to show ouster and title by adverse possession. 
Green v. Harmon, 15 NC 161, cited and approved.

8. Appeal and Error - Maps and Surveys - Allowance by Judge – 
Interpretation of Statutes - Charge Upon Separate Property - Feme 
Covert 
When a survey has been made of the lands in controversy, the statute 
requires the trial judge to fix an allowance to be paid the surveyor 
for his services (Revisal, sec. 1504); and it appearing in this case 
that the parties had from time to time each paid one-half of the cost 
of the survey and platting of the land, and that the judge had declared 
the charges made by the surveyor to be exorbitant and had refused to 
act thereon, the cause is remanded to the end that the allowance of the 
surveyor be fixed and taxed against the plaintiffs to the use of the 
defendant, not exceeding the amount the latter has paid; and, further, 
a motion to make them a charge against the separate state of feme 
plaintiff should be denied.

Appeal by plaintiffs from Justice, J., at January Special Term, 1911, 
of Lenoir

The plaintiff brings this action to recover damages for ponding water 
on her land, located on South-West Creek. She alleges in her complaint, 
among other things:

"That the defendant is the owner of a mill-site known as 'Kennedy's 
Mill' in said South-West Township, which said mill is built across 
South-West Creek below plaintiff's lands, and the defendant makes use 
of the waters of said South-West Creek to supply power for the 
operation of said mill."

"That on or about ... day of March, 1906, the defendant wrongfully, 
unlawfully, and without any rightful authority raised the dam of said 
mill about 3 feet or more over and above the height which he and the 
former owners of the said mill had maintained it before, and thereby 
raised the water in said creek, and caused same to overflow upon the 
feme plaintiff's lands hereinbefore mentioned, to her great damage and 
injury."

The plaintiff admitted on the trial that the defendant was entitled to 
maintain his dam at 10 feet 7 inches, and the controversy between was 
as to the land between the water-mark with the dam at 10 feet 6 inches 
and the water-mark with the dam at 12 feet 2 inches.

The defendant contended that he was the owner of the land beyond the 
water-mark with the dam at 12 feet 2 inches high, and, if not the 
owner, that he had acquired the right to pond the water by 
prescription.

The plaintiff offered evidence tending to prove that prior to 1906 the 
dam was 10 feet 6 inches high, and that in that year it was raised to 
12 feet 6 inches, and that water was thereby ponded on the land claimed 
by the plaintiff.

The plaintiff also offered a chain of title extending to 1869, and 
evidence that this title covered the land in controversy, and of 
adverse possession for a length of time sufficient to ripen color of 
title. It was admitted that the records of Lenoir County, except two 
old index books, were destroyed by fire in 1880.

The defendant offered in evidence deeds and other evidences of title, 
which if admissible, trace his title to 1769.

Among other evidence of title, the defendant introduced a paper 
purporting to be a deed from Major Croom to Richard Caswell, of date 
1772. The following certificate was on this paper:

I certify the above deed, probate, and enrollment to be true copies 
from the records of Lenoir County, this 12 March 1851.
                                        Stephen White, Register

Plato Collins was examined in reference to this paper, and testified as 
follows:

Q. How long have you been clerk of the court? 
A. Eleven years.

Q. It is in evidence that Stephen White was register of deeds; have you 
ever seen any of his handwriting in his official capacity as register 
of deeds?
A. I haven't seen the original records; they were destroyed; I have 
seen papers with Caswell's and White's signatures in a good many 
instances, certifying to the records when he was register of deeds.

Q. Have you seen that handwriting in his official capacity, purported 
and accepted as his handwriting?
A. Yes, sir.

Q. You mean you accepted it as clerk?
A. It has been presented to me as his handwriting and we accepted it as 
such; I have seen a good many of them.

Q. From what you have seen, can you form an opinion satisfactory to 
yourself whether these papers are in Stephen White's handwriting?
A. Yes, sir; I have seen it frequently; it is the same handwriting.

Q. Will you look at that paper and say whether the certificate is in 
the handwriting of Stephen White?
A. I think it is.

Cross-examined

Q. Have you seen any of his handwriting that has been questioned 
before?
A. No, sir.

Q. That was seen by people and accepted as his handwriting?
A. Yes; they were presented to me by parties who held them, and 
accepted by me at his handwriting.

Q. In fact, you never saw any public records admitted to be in his 
handwriting?
A. That matter was never brought in question by anybody.

Q. The papers were accepted by you and put on the public records?
A. Yes, sir.

Redirect examination:

Q. Look at that paper and see what you think about it. (Hands witness 
paper.) Is that the same as that?
A. Yes, sir; that purports to be Major Croom to Richard Caswell, 
certified 12 March, 1851.

Q. Will you look at that deed from Richard Caswell to Jesse Cobb, 
certified April, 1855; look at his signature?
A. That doesn’t look as much like it as the other; the characteristics 
of it are the same.

Q. In your opinion, are the handwritings on those two papers in his 
handwriting?
A. They have the same characteristics; I say it is the same handwriting 
that was purported to me to be in his handwriting.

Q. Also Jesse Cobb to John Cobb, certified 16 April, 1855; is that the 
same handwriting?
A. Yes, sir.

Q. You have said you had seen the writing of White when he was register 
of deeds in 1851; have you seen other writings of his?
A. When I was a boy I saw receipts my father got when he used to trade 
with White, and we had been getting receipts; they got burned up when 
my father’s house burned up; they were in the same handwriting as 
these.

Q. From your recollection of the handwriting of Stephen White, are you 
able to form an opinion to yourself that the signatures submitted to 
you are the handwriting of Stephen White?
A. Yes.

Two other papers were admitted on the same evidence.

The plaintiff excepted.

In the chain of title introduced there was a deed from Jesse Cobb to 
John Cobb, of date 10 March, 1800, and the division of the John Cobb 
lands, of date 16 December, 1844.

In this division, under which the defendant claims, the land covered by 
the mill “to the high-water mark of the millpond” is allotted.

The deed to Richard Caswell and others called for land on South-West 
Creek.

E.P. Loftin, for the defendant, testified, among other things, that he 
had known the Cobb mill about 65 years; had lived about a mile or a 
mile and a half from the mill-house; that when he first knew the mill, 
old man Cobb was in charge, and, after his death, his son, Jesse Cobb; 
it was known as Cobb’s mill; Johnnie Jackson had charge next; then 
Kennedy and Wooten; then Mr. Kelly; that he had known the boundaries of 
this land known as the Cobb mill land for fully 65 years; that he knows 
the present boundary of the high-water mark of the mill property, and 
that it is lower now than when the Cobbs had it; that he saw trees 
there above the island when he was a boy, and the water is about the 
same thing now; that there is a holly and the water does not come up as 
close as when he used to fish there; also a gum there that has high-
water marks on it made with an axe, that are 12 or 14 inches above the  
present high-water mark; that the holly has marks or bruises on it, and 
that he had chained his boat to the holly when fishing, at the time 
Kelly had the mill; that the water now does not quite cover the island 
in the pond, and that he had seen it covered by water in times past; 
that the dam was old and worn down in 1851 and 1852, and that he does 
not think the water is as high now as it was then.

The defendant testified, among other things, as follows:

That he bought the mill from J.J. Jackson and rented it to J.C. Kennedy 
from year to year for 5 years; at the expiration of the time he sold it 
to J.P. Kelly and delivered to him in January, 1885. Kelly kept the 
mill for 18 years; then he bought it from Jackson, commissioner; J.C. 
Kennedy bought the half interest from J.C. Wooten, and the property was 
sold under that mortgage to pay that debt; bought it from Jackson; both 
J.C. Kennedy and J.C. Wooten are dead; J.C. Kennedy died about 16 or 18 
years ago; Wooten died about the same time; that he was put in 
possession of what is known as the Cobb mills, the same property he 
owns now; that at that time the water of the pond was higher than it is 
now, and not as high as he has seen it; at the time the west end of the 
dam and the road, in his judgment, was about as it was then, the 
Kinston end; some of the papers refer to it as the north side; it is a 
little northwest; on that end of the road is about like it was then; 
the dam doesn’t extend quite as far as the pond; this road on the 
Kinston side of the dam stops before it gets to the rim of the pond and 
the public road and the natural level of the land for his part of the 
water of the pond; at that time the pond was about level with the road, 
but it was not running over; then further down where Cheney shows on 
the maps the little island, there are several projections, hummocks or 
tussocks; that is the point he has designated as a little island; the 
top of that shows, but the smaller ones do not show. They all show now. 
That he commenced to repair in the summer of 1905 and completed about 1 
March, 1906. The water is lower than when he took charge; the 
Strawberry Branch run is in the center of Strawberry Swamp; at this 
point it turns towards the island at right angles; when it reaches the 
upland there is a natural embankment there 14 inches or 2 feet; all 
along the run of Strawberry Swamp down to where you can see it on the 
swamp side of the embankment is cypress, gum, and such growth that 
grows in water on LaRoque’s side of the run; on the embankment there is 
a growth that usually grows on uplands; that he saw only one dead pine, 
that looked to be dead 10 or 12 years to him; it is rotten; there is 
one small pine standing in water about 15 or 29 steps from the rim of 
high-water mark; the high-water mark seems to be along the bank of the 
stream; there is a slight line that runs along there which would 
indicate water has been there; and from the observation he made and the 
growth, the high-water mark used to be at least 12 inches higher; the 
holly and dogwood are right on the edge of the embankment; they are 
about 10 or 12 feet from the rim of the water; it slopes there 
gradually and a boat could not go within 20 or 30 feet of them now; 
that he noticed the bark of the trees; they looked like they had old 
bruises on them; observed a gum; it is in the same locality, but 25 
feet from them; the gum is farther to the water; the water would have 
to rise a foot and a half to reach that; on the island they speak about 
he only saw one small pine that lies almost to the water; it didn’t 
seem to be thrifty.

Jesse Evans, for the defendant, testifies as follows:

Q. Where do you live?
A. Dover.

Q. Are you acquainted with the Cobb mill?
A. Yes, sir. I have known it all my life; when I first knew it, it was 
Cobb’s mill; I am 55 years old now.

Q. Will you state whether you have had any business relations there, 
and if so, what?
A. I cut some timber, cypress, up the pond under Mr. Kelley’s 
instructions; that was 15 years ago; I made arrangements with Kelly on 
what they call Strawberry Branch and floated it down to the pond and 
put it at the pond, this end of the pond.

Objection to; objection overruled; exception.

The Court: I am admitting it to show the condition of the water up 
there.

Q. You say you floated it down on this end of the pond; what is that 
end of the pond?
A. I claim it is right along the road, where the waters come, what you 
might say is an open place.

There was other evidence on the part of the defendant as to marks on 
the land and trees, tending to show an old water line beyond the 
present one, and that the water had been ponded on the land 
continuously since 1850 or 1860, by the defendant and those under whom 
he claims, as far or further than at this time; and there was evidence 
to the contrary by the plaintiff.

His Honor charged the jury fully, to which there was no exception 
except as follows:

(a) “The plaintiff admits that the defendant is entitled to pond water 
on the land covered by water by a dam of 10 feet 6 inches, but that he 
is not entitled to pond water on the land covered by water between that 
height and the height of the water when maintained at 12 feet 2 
inches.”
(b) “The defendant introduces a deed in partition, dated 1844, the 
calls of which are for the high-water mark of the millpond; but the 
deed does not state the height of water in the millpond in 1844. The 
defendant claims title by possession, but does not show a grant from 
the State, but claims the same character of title that the plaintiff 
does. The defendant claims that the high-water mark mentioned in those 
proceedings of the Cobb mill, in partition proceedings, fixes the 
boundaries under which the defendant and those under whom he claims 
claim their title. Now, if you find the plaintiff has ripened her 
title, then you inquire where the defendant has a right and title or 
where he has been in possession. The defendant claims he has been in 
possession of the land up to the boundary known as the high-water mark. 
Now, the burden upon that question would be upon the defendant to show 
you by the greater weight of the evidence, or at least to your 
satisfaction, where that high-water mark is, either by the deed of 
partition or by some other deed, that the boundary is fixed and 
determined in some way.”

The plaintiffs excepted to the foregoing portion of the charge.

(c) “So, then, it is a question for you to ascertain, whether the 
defendant has shown where the high-water mark is, either by showing you 
the height of the dam at the time the deed was made or where the high-
water mark actually was.”
(d) “The defendant claims that you should answer the issue No; that the 
plaintiff is not the owner of any part of the land covered by water at 
the height of 12 feet 2 inches at the dam, nor any part of it; that he 
has proven to your satisfaction that he is entitled to the land covered 
by water at the height of 14 feet.”

The plaintiffs excepted to the foregoing portion of the court’s charge.

(e) “Now, the right of the defendant to pond the water back on this 
land might arise from two grounds: First, if the defendant owns the 
land covered by water by a dam up to 12 feet 2 inches, he has the right 
to pond the water back; and if you find that he owns it, then the 
question for you is, Has the defendant exercised the right continuously 
for 20 years to keep the water at 12 feet 2 inches? The defendant 
claims that he has the right to keep it back to where it is, and even 
higher, by reason of so keeping it for 20 years continuously, and that 
if he has that right, he has what is known as a prescriptive right and 
is entitled to the easement of 12 feet 2 inches. The defendant claims 
he has the right to maintain a dam at 14 feet and that the dam has been 
maintained at 14 feet for more than 20 years or at least it has been 
ponded as high as it is now for 20 years continuously.”

The plaintiff excepted to the foregoing portions of the court’s charge.

(f) “The court charges you that if you find by the greater weight of 
the evidence that the defendant owned the land, then he would have the 
right to pond the water back as often as he pleased; also the court 
charges you if he had the right to pond the water upon the land, and 
that right was acquired by prescription, then if he did it for 20 years 
continuously and ponded it back at a point at or above what it is now, 
and acquired that easement by 20 years continuous use, he would still 
be entitled to maintain it.”

The plaintiff excepted to the foregoing portion of the court’s charge.

The jury returned the following verdict:

1. Is feme plaintiff the owner and in possession of any part of the 
tract of land described in the complaint not covered by water ponded 
back by a dam at the height of 12 feet 2 inches? If so, what part 
thereof? Answer: Yes, all above water at 12-2.”
2. Is feme plaintiff the owner and entitled to possession of any part 
of the land described in the compliant covered by water ponded back by 
a dam at the height of 12 feet and 2 inches? If so, what part thereof? 
Answer: No.
3. Has defendant wrongfully injured plaintiff’s land by unlawfully 
ponding water on plaintiff’s land? Answer: No.
4. What damages, if any, is plaintiff entitled to recover of defendant? 
Answer: None.

A judgment was rendered upon the verdict, and the plaintiff appealed.

Loftin & Dawson, G.V. Cowper, and McLean, Varser & McLean plaintiff.
George Rountree, W.D. Pollock, and Rouse & Land for defendant.


Allen J., after stating the case: The plaintiff objects to the 
admissibility of the deed of Richard Caswell on two grounds:

(1) That the evidence of the clerk, Plato Collins, as to the 
handwriting of Stephen White, who was Register of Deeds of Lenoir 
County in 1855, is incompetent. This objection is fully met by the 
interesting and valuable opinion of Justice Hike in Nicholson v. Lumber 
Co., ante, 59. In that case a certificate of survey of a land warrant, 
dated in 1841, and signed by Ruel Windley, surveyor, was admitted in 
evidence on the testimony of John B. Respass, Jr., which was as 
follows:

Q. Do you know Ruel Windley’s handwriting:
A. I know it in this way; he raised my father and was very devoted to 
him, and often in looking over his papers, which I have now, my father 
would show me and say, “This is grandfather’s signature.”
Q. Have you seen a great deal of that writing?
A. Yes, sir. Since I have been surveying I have seen quite a lot of it. 
By family reputation, my great-grandfather was a surveyor, and my 
father was a surveyor.

A small map, marked “A” was handed to witness, and he was asked:

Q. Whose handwriting is this, if you know?
A. That is Ruel Windley’s, from the source of information I have.

By the Court:
Q. Do you mean to say that somebody told you that that identical paper 
was in Ruel Windley’s own handwriting?
A. Not this one.

By counsel for defendant: 
Q. From the writing you have seen purporting to have been written ty 
Ruel Windley, is that, or is it not, his handwriting?
A. Yes, sir; that is his handwriting.

And the Court, in speaking of this evidence, says:

“On these facts and accompanying testimony, we are of opinion that the 
plat with the certificate was properly received in evidence, being 
admissible as an ancient document, and also by reason of competent 
testimony tending to show that the certificate just below the plat and 
giving the corners of same, was signed or subscribed in the handwriting 
of Ruel Windley, deceased … The means of acquiring the requisite 
knowledge to enable one to form and express an opinion as to 
handwriting has, in case of ancient documents, and of necessity, been 
extended to include a witness who, in the course of his duty, has had 
full opportunity and frequent occasion to observe and not the 
handwriting in other ancient documents, entirely free from suspicion, 
and states that he has thus been enabled to form a satisfactory opinion 
as to the handwriting of the ancient document in question. 3 Taylor 
Evidence, Ames’ Notes, 1229, 21; Chamberlain Best on Evidence, p. 231; 
Starkie on Evidence, sec. 521.”

(2) That no evidence was introduced to locate this and other deeds.

This objection cannot be considered under an exception to the 
admissibility of the deed. If the defendant offered a certified copy of 
the deed, and identified the handwriting of the officer who made the 
certificate, it was competent evidence; and if afterwards he failed to 
locate the land, the defendant should have called the matter to the 
attention of the court by a motion to withdraw the deeds or by a 
request for a special instruction.

It is not, however, essential that evidence of location should come 
from witnesses for the defendant, or from living witnesses. The deeds 
may contain descriptions which, without the aid of extrinsic proof, may 
indicate where the property is situate.

In this case the witness described the locality minutely, and according 
to all the evidence there was an ancient mill on the land claimed by 
the defendant and on South-West Creek.

In the deed to Caswell and in the other deeds the land is particularly 
described, and is said to be on South-West Creek, and to include the 
grist-mill on said creek.

We think the deeds were properly admitted. We also think the evidence 
of Jesse Evans was competent, restricted, as it was, by his Honor.

The first exception to the charge cannot be sustained. We must assume 
that the judge correctly stated the admission of the parties, and if by 
inadvertence he did not, it ought to have been called to his attention 
at the time, and cannot be made the subject of exception for the first 
time in the case on appeal.

The other exceptions to the charge are upon the grounds:

(1) That there is no evidence where high-water mark was in 1844.
(2) That there is no evidence of an adverse possession by the 
defendant.
(3) That there is no evidence of a user by the defendant that will 
confer an easement.

In our opinion, there was some evidence as to the location of the high-
water mark in 1844, and of a user by the defendant for a sufficient 
length of time to confer an easement.

A fair interpretation of the evidence of the witness Loftin is that in 
1851 the water was maintained higher than now, and that at that time 
the dam was old and worn down, and there is other evidence of marks on 
the trees and land, and of the changes in the land, which were properly 
left to the jury.

If the evidence of the defendant is accepted as true, and we must do so 
in considering the question whether there is evidence, there can be no 
doubt of a user under a claim of right for more than 20 years, which 
would be necessary to confer an easement.

The objection that there is no evidence of an adverse possession is 
based on the following statement of Chief Justice Ruffin in Green v. 
Harmon, 15 NC 161:

“The overflowing of land by an act not done on it, but by stopping a 
water-course below, on one’s own land, is not an ouster of the owner 
from the land overflowing. There is no entry, which is necessary to 
make a disseizin. The remedy for the injury is not trespass, but an 
action of the case of the consequential damages. Howard v. Banks, 2 
Bur, 1113. Hence, however long it may continue, it affords, of itself, 
only a presumption of a grant of the easement, and not of the 
conveyance of the land.”

The principle declared is not applicable to the facts in this case, as 
according to all the evidence here the dam was on the land of the 
defendant and the water does not extend beyond the claim of the 
defendant.

It is, however, manifest, from an examination of the whole case, that 
it was not the purpose of the Court to declare that overflowing land, 
claimed under a deed, is not an act of adverse possession, as is shown 
by the concluding language of the opinion:

“Although cutting of timer and overflowing the land do not amount, of 
themselves, to an ouster, yet, being done without the leave of the 
owner, they give character to the entry into another part, and also 
furnish evidence of it to the owner. The jury might fairly infer from 
it, not only that the defendant did claim the land, but that the lessor 
of the plaintiff knew he claimed it and was not a mere wrongdoer 
without color of title.”

The case involves, almost entirely, questions of fact, and having been 
fairly tried, we cannot disturb the judgment.

No error.


DEFENDANT’S APPEAL IN SAME CASE

The defendant’s appeal presents two questions.

Upon the coming in of the verdict, the defendant moved the court for 
judgment for the entire cost of the action, including the cost of the 
survey. The court declined to tax the cost of the survey against the 
plaintiffs, on the ground that one-half had been paid by each party as 
the survey proceeded, and the court stated that in his opinion the bill 
was exorbitant, and declined to allow it to be taxed in the bill of 
costs. Defendant excepted.

The defendant then moved the court to adjudge the cost of the action to 
be charged upon the separate real and personal estate of the feme 
plaintiff, Nora A. LaRoque. The court declined to grant the motion, and 
the defendant excepted.

The record discloses that the cost and expense of the survey were 
advanced equally by the plaintiffs and defendant upon the demand of the 
surveyor, as the survey progressed, and at the time of the trial one-
half of the cost of the survey had been paid by the plaintiffs and one-
half by the defendant. The entire cost of the survey was about $750.

It is provided in section 1504 of the Revisal that the court may order 
a survey when the boundaries of land shall be drawn in question in any 
pending action, “and for such surveys the court shall make a proper 
allowance, to be taxed as among the costs of the suit.”

The amount of the allowance is within the discretion of the court, 
after considering the evidence as to the work done, but the judge 
cannot decline to act because he thinks the charges made by the 
surveyor are exorbitant.

The statute requires him to fix the allowance, and directs that it 
shall be taxed as costs.

The payments to the surveyor without an order were made by the parties 
at their own peril, and cannot control the action of the judge.

The defendant was not entitled to have the judgment for costs made a 
charge against the separate estate of the feme plaintiff. The ordinary 
judgment for costs was rendered against her, which was proper.

The cause is remanded, to the end that the allowance to the surveyor be 
fixed, and that it be taxed as costs, to the use of the defendant; 
provided that in no event shall such amount to the use of the defendant 
exceed the amount he has paid.

Reversed.

Source:
NC Reports
Vol 156
NC 360

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