AVERY, J., dissenting. This is an action of ejectment brought to this Court on appeal of plaintiff. Plaintiff for the purpose of making out his title offered in evidence a grant from the State of North Carolina to himself issued on 18 June, 1890. And it being admitted by defendant that it covered the land in question, and it also being admitted that defendant was in possession, plaintiff rested his case.
The defendant for the purpose of showing that the land claimed by plaintiff had been granted prior to the date of plaintiff's grant, and was not the subject of grant in 1890, offered in evidence a grant from the State to John Gray Blount and William Stedman, dated 28 March, 1799, which he claimed covered the land in controversy. The calls of this grant are for "ten thousand two hundred and forty acres of land in Bumcombe County on the west side of the French Broad river, *Page 506 beginning at a birch, ash and pine on the west bank of said river opposite the Painted Rock below the Warm Springs, running south 360 chains to a stake, supposed to be in Stokely Donelson's line, thence with his line east 390 chains to his northeast corner, thence south 275 chains to a bunch of dogwood on a branch of Spring Creek near the Puncheon Camp, Donelson's beginning corner, thence east 80 chains, thence 150 chains to a line of David Allison's 250,240-acre survey, thence with that line north 45 degrees to the French Broad River, thence down the river with the meanders of the bed of the river and around the line of (861) the old patented land on the west side of said river to the beginning."
The beginning call of this grant on the west bank of the French Broad River at the Painted Rock was agreed upon by plaintiff and defendant. And it is admitted by defendant that to run south from this agreed beginning, three hundred and sixty chains, and then east will not include the land covered by plaintiff's grant. But defendant claims that the Blount grant, under which he is defending, calls for the line of the "Stokely Donelson grant," which he alleges is further south, and that the Stokely Donelson line is the southern line of the Blount grant. Under this claim of defendant, the surveyor, as it was proper for him to do, extended this south line for one and one-fourth mile further than the three hundred and sixty chains called for in the Blount grant, to a point that defendant claimed to be the "Stokely Donelson" line. And it is admitted by plaintiff that if this point, claimed by the defendant to be the Stokely Donelson line, is the southern boundary of the Blount grant and thence east, that it does cover the land contained in his entry of 1890.
There was much evidence offered by both sides as to the location of the Donelson grant which was for 60,400 acres "issued 28 August, 1875." Defendant's evidence tended to establish it at the point contended for by him. And plaintiff's evidence tending to show that this line, the one contended for by defendant, was not the Stokely Donelson line.
There are some exceptions taken to the evidence which we are not prepared to approve, as we understand the ruling of the court. But as the point does not distinctly appear, and we may not understand the point intended to be made, and as a ruling on this point (862) in favor of the plaintiff would probably not materially affect a new trial, we prefer to put our opinion on a more substantial point.
At the close of the evidence the plaintiff asked several special instructions of the court which we will not repeat in full. But in these instructions he asked the court to charge that the first call "south 360 chains to a stake, supposed to be Stokely Donelson's line, thence *Page 507 with this line east 390 chains to his northeast corner," was too vague and uncertain to vary the course and distance called for in the grant. And that the court should so charge the jury and instruct them that said grant stopped at the end of the call for 360 chains, and thence ran east. The court refused this prayer of plaintiff, and instructed the jury "that if they should find that the beginning corner of the Donelson grant was at the point designated by the hand at the figure 28, as contended for by defendant, and that its line had been run out and marked and located at the date of Blount's grant, or that they were susceptible of location to a mathematical certainty from the Donelson grant, the beginning corner of the Blount grant being admitted, the call of the Blount grant `beginning at an ash opposite the Painted Rock, running south 360 chains to a stake supposed to be in Stokely Donelson's line, and then east with his east line 390 chains to his northeast corner, etc.' (though the distance gave out before the Donelson line was reached by the first call), the second call would carry the line to the nearest limit in the Stokely Donelson line, and then with that line to the northeast corner of Donelson's grant, if such a line can be found, and if they believe from all the evidence that the Stokely Donelson line was the line called for in the Blount grant, that the land in controversy was covered by the Blount grant, and the plaintiff could not recover. That if they should find that the Stokely Donelson grant had been correctly located; that its beginning corner was established at the date of its issue, and its lines were located or were susceptible of (863) location to a mathematical certainty from the grant, and the lines of the Stokely Donelson grant were the lines called for in the Blount grant, that the law would extend the second call in the Blount grant to the line of the Stokely Donelson grant, and then with it to its northeast corner, etc. So that at the date of the plaintiff's entry and grant there was no land vacant and open to grant within the said boundary, the same having been previously granted to Blount by the State."
So then the question is, Were the refusal to give the instructions asked and the charge as given erroneous? If they were, the plaintiff is entitled to a new trial. If they were not, then the judgment should be affirmed.
In the early history of this State there were a great many very large grants of land obtained by speculators, commonly called speculation-grants. As the country did not fill up rapidly, these lands did not increase in value rapidly, and but few of these "speculators" derived much benefit from such lands. But many of them have floated down with the current of time, and are now in the hands of other speculators who now hold them under tax-titles or otherwise, purchased for small *Page 508 sums. And as these lands now begin to grow in value and importance, we have more and more litigation growing out of these old grants, the most of them being located in an almost unsettled rough mountain country, the lines of which often extend for miles. Many of them, it is said, were never actually surveyed, but a party wanting to make an entry would locate a beginning corner and then plot the boundaries, and in the language of the court below locate them "with mathematical certainty" by simply making a plot of a survey. And it is evident to our minds that both the Blount grant and the Donelson grant (some of the lines of which were 20 miles long) were located in this way. And (864) this may afford some explanation for the Blount grant calling for "a stake supposed to be in the Stokely Donelson line" — when the Stokely Donelson line is a mile and a quarter from where the calls in the Blount grant give out, if the Stokely Donelson line is where defendant contends it is.
The general rule is that the calls in a grant or deed control in locating the land granted or conveyed. But this general rule is subject to the exception that when a natural object or monument is also called for in the deed or grant, susceptible of location, and is identified and located, this will control course and distance, as called for in the instrument. And the courts have held that the line of an adjacent tract, if known and established at the time of issuing the grant or executing the deed, may constitute such natural object or monument.
But this exception is put on the ground that the natural object is more certain than course and distance, as these depend upon the correctness of the compass, the accuracy of the surveyor and the faithfulness of the chain-carrier.
To take the case out of the general rule that course and distance, as called for in the conveyance, control, there must be another call more certain than course and distance. Then, is the call to a stake "supposed to be in Stokely Donelson line" one mile and a quarter from where the course and distance called for in the grant give out, more certain than course and distance called for? It is manifest from the call itself that the party locating this grant did not know where Stokely Donelson's line was. And if he did not know where it was then, but it should, a hundred years after the grant was issued, be found that the Stokely Donelson line was one mile and a quarter from where the (865) calls of the grant located the grant, can it be reasonably contended that this uncertain call "Supposed to be in the Stokely Donelson line" is more certain than the call "thence south 360 chains to a stake"? This it must be, or the calls of course and distance contained in the grant will control. This is the general rule, and the exception must be established or the general rule will prevail. *Page 509
Then if there was nothing more in the call than this (a stake supposed to be in Stokely Donelson's line) it seems clear to us upon the "reason of the thing" that this call would not be sufficient to take the case out of the general rule, and the course and distance called for in the grant must prevail. But this is not only so upon the reason of the thing, but it has been so held by our Court. Mizzell v. Simmons,79 N.C. 182. But the call does not stop with the call for a stake "supposed to be in Stokely Donelson's line," but it then calls as follows "thence with this line east 390 chains to his northeast corner." And it is claimed for the defendant that this call is more certain than the other, and carries the south line of the Blount grant to the Donelson line wherever it may be. But we do not assent to this proposition. In our opinion, any call to take the case out of the general rule must be both reasonable and certain, and we do not think this is either. We do not think it reasonable that when the State granted to Blount a tract of land commencing on the west side of the river at the Painted Rock, thence south 360 chains, it intended that line to extend one and a fourth miles further than was called for. And to have this effect the call must be to some well known and well established object, at the time of the grant. But as it appears to us, this call depends upon the other call "supposed to be in Stokely Donelson's line" and it is no stronger than that call, which, we have seen, is not sufficient. If the Blount grant had extended to Stokely Donelson's line, thence east would have necessarily run with Stokely Donelson's line, as his line was an east and west line. But if the grant did not go to the "supposed (866) line," then it did not run east with the "supposed line." Whether we get to the Stokely Donelson line or not does not change the calls in the Blount grant. It is thence east from wherever the Blount grant stops.
It is not pretended that the defendant established or found any corner or line of the Stokely Donelson grant, except the beginning corner. And the other lines and corners of a 60,400-acre grant are attempted to be established by a survey "with mathematical certainty" to control the course and distance called for in Blount grant. It is not contended that any marked line or monument is found locating the Stokely Donelson line at the point where defendant contends that the Blount grant should terminate. We do not think such a mathematical line as this can be used to control the positive calls of course and distance contained in the Blount grant. Who can tell that there are not errors in the calls of course and distance in the Stokely Donelson grant, or in the survey made in a rough and almost unbroken forest of a 60,000-acre tract of land granted a hundred years ago?
The surveyor testified (and his testimony is made part of the judge's *Page 510 case on appeal) that to survey the Blount grant, as contended for by defendant, it would contain between 25,000 and 30,000 acres of land; and to survey it by the calls and distances in the grant, as contended should be done by plaintiff, it will contain more than 10,240 acres (this being the amount called for in the grant).
We are not inadvertent to the fact that, as a general rule, quantity of acres called for in the conveyance cannot be invoked to establish lines and locate the deed. But it has been held by this Court that "where the boundaries are doubtful it becomes an important element." Cox v. Cox, 91 N.C. 256. We do not think this south boundary (867) of the Blount grant doubtful. But if it should be considered so, then this question of quantity comes in to sustain the view we have taken of this case.
We are of the opinion that plaintiff was entitled to the prayer as above stated and there was error in the court's refusing to give the same, and there is also error in the charge as given. The plaintiff is entitled to a new trial and it is so ordered.
New Trial.