delivered his own opinion and that of the Court: I think that I was incorrect in my charge to the jury below in this, that I directed them to find for the defendant, whether the lake had receded or not, for in either case it remained his boundary. Now, if the recession of the lake was sudden and sensible, the land which it had covered, and which by its dereliction became dry, would not, and ought not, to be included in the defendant's grant; but if the waters receded gradually (58) and insensibly, the charge would be right, and the lake ought to be considered one of the defendant's boundaries. 2 Bl. Com., 261; Harg. Law Tr., 5; Dyer, 376; Vattell L. N., 193. It is therefore necessary that the fact be found whether the waters of the lake receded imperceptibly or not from the land in dispute, because on that question the rights of the parties depend; and to do that, the rule for a new trial must be made absolute.
Cited: Hodges v. Williams, 95 N.C. 335.