This was an action of ejectment, in which the plaintiffs claim under the acts of Assembly granting the vacant swamp lands in the State to the Literary Board and the defendant, under a grant to one Solomon Smith, issued in 1786.
The question in this case is upon the construction of the grant to Smith, which is mentioned in the pleadings. The description is this: "Lying on Pungo Lake, and beginning on the lakeside, at a place known by the name of the Old Landing, and thence south 80 poles; thence west 400 poles; thence north 80 poles; thence east 400 poles, with the windings of the lakewater to the beginning, as by the plat hereto annexed doth appear." The plat referred to is a parallelogram formed by lines from the cardinal points, 80 poles by 400, and does not (59) lay down any part of Pungo Lake. The court below nonsuited the plaintiffs, and they appealed. The decision depends on the length and course of the third line, "north 80 poles." It must be extended, beyond the distance called for, to the lake in some direction; because the next line from its termination is described as not only being "east 400 poles," but, furthermore, as running "thence with the windings of the lakewater to the beginning" on the lake. For it has been decided in a great number of cases, so as to be settled in this State, that the mathematical calls in a deed must give way to those for visible objects capable of being identified; *Page 51 as, for example, marked trees, and, with yet more reason, natural boundaries, as they are called, such as rivers or other streams, mountains, rocks or other enduring monuments. Indeed, the rule has been found to have been laid down in the statute-book itself, as early as 1715, in the provisions for resurveying prior patents, which direct that "the surveyor shall proceed by marked trees, if the same can be found, or by natural boundaries, if any mentioned; and if there be not marked trees, then he shall follow the courses mentioned in the patent, so as the intention of the party first taking up the land may be observed as near as may be." Ire. Rev., 1715, ch. 29. The reason thus given makes it plain that the rule rests upon a presumption that there is less probability of a mistake having been committed in a line identified by marked trees or by a stream than in one to be ascertained by the chain and compass merely; and, therefore, that by having regard to those natural objects the intention of the party will more probably be fulfilled than by respecting the courses and distances only. Then, if the third line here, instead of being described as "north 80 (60) poles," had gone on further "to the lake," there could be no scruple in extending the line to the lake, though it be three or four times the distance. But in truth the calls, taken together, amount substantially to that supposed; for, although the third line is in itself described by course and distance only, yet the line from its termination goes "thence with the windings ofthe lake to the beginning," which necessarily carries the third line itself to the lake. Indeed, the case is precisely the same asHaughton v. Rascoe, 10 N.C. 21, in which one of the points was on this description: "then north 12 degrees, east 530 poles, then along the thoroughfare to the first station"; and it was held that the line, north 12 degrees, east 530 poles, went to the thoroughfare, and the next with the thoroughfare to the beginning.
It was, however, argued at the bar that the plaintiffs were entitled to judgment upon the case agreed, because, at all events, the patent did not cover all the land claimed by the defendant, inasmuch as the line was to go from the point at which the distance gave out, the nearest way to the lake, which is at a point considerably east of that where the third line intersects the lake, when extended due north. But the position is not correct in this case. It would be true, if the third line, pursuing its course, would not touch the lake at all; for, in that case, after completing the distance called for on the third line, the lake, on which the land must be bounded, could only be reached by changing *Page 52 the course, and then the most direct course must be adopted, forasmuch as there can be no other certain one. But neither course nor distance can be departed from further than the one or the other is necessarily controlled by other calls. In all other respects they stand as if they were the sole terms of description. Here the error in the distance — 80 poles — is the only one which is apparent, and that is corrected by carrying the (61) line to the lake. But as the line, when protracted north, actually intersects the lake, that course must be pursued, because there is nothing to turn the line in any other direction.
However the plat annexed to a grant may, in some cases, aid in the interpretation of ambiguous calls, it cannot have any effect in this case, since it does not purport to lay down the lake at all, although the accompanying description calls for it twice, and the act of 1777 expressly requires water courses crossed or touched, and other remarkable places, to be set down.
The omission renders it highly probable that the plat was made without actual survey, and thus deprives it of whatever credit it might otherwise be entitled to. But, at all events, there is nothing on it which can prevent the lines which call for the lake from going to or with it.
PEARSON, J. I concur in this opinion.