Sampson County, NC - Carroway & Wife v. Daniel Witherington, 1817

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Den on Dem. of Carroway and Wife vs. Daniel Witherington

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

This cause was tried before Ruffin, J. at Sampson Superior Court,
October, 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
fig. 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 north east branch of Cape
Fear River, beginning at a Maple below Munse's ford, thence No.
60 degrees E. 94 poles to a Red-oak; then So. 36 degrees, E. 200
poles; then No. 63 degrees, E. 60 poles; thence No. 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 that 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 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 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 calling for
the pine on the Marsh branch, gives a line running thence, "along
said branch," (without any 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 convered 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 land in dispute, and the defendant was, in law,
entitled to their verdict.

Regular conveyances from the patentee, Kornega, to the lessor of the
plaintiff, were produced; and the defendant's grant issued after
Kornega's. The question for the decision of the Supreme Court is,
whether upon the foregoing statement and the construction of Kornega's
patent, 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 trail
be discharged.

Source: North Carolina Reports, July 1816-1818

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This file was contributed for use in the USGenWeb Archives by
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