Gilmer v. . Young

Fairoloth, C. J.:

The object of this action is to ascertain the true number of acres iu two large tracts of land. It was admitted that the boundaries were all located and undisputed, that the purpose of this action was to determine the number of acres within said boundaries, and that the only question was whether the acreage was to he computed by surface measurement or by level or horizontal measurement, according to the rules laid down in the standard works on surveying. The contract was to pay a certain price per acre for all the acres within the admitted boundaries. One clause of the contract was : “Immediately upon the decision of the question of title, an accurate survey shall be made of said tracts of land for the purpose of ascertaining the number of acres in each tract.” Surveys were made on each theory and the difference ascertained. What is an accurate survey, therefore, is the important question.

All the standard authorities being against the method of surface measurement, and this being admitted, there seems to be but little for this Court to consider.

When the State granted its western domain in large bodies, there is no evidence whatever that the State adopted the surface measurement, and there is no ground for presuming that it did so, in spite of the fact that the authorities agree in laying it down that the horizontal measurement is the correct one. His Honor properly adopted the latter theory, from which the plaintiff appealed.

The difference in the two modes of measurement is material. Suppose the body of a large grant should be comparatively flat and level, and that several of the boundary lines should cross high points and deep ravines. Of course the calculation would show many more than the true number of acres, whereas the horizontal measurement would give the true acreage.

Looking for a corner according to course, distance, chops and the like is a different question from that of measuring the distance between two admitted corners, on a given course.

In Stack v. Pepper, 119 N.C., 434 although an argument was made in support of the surface theory, the opinion recognizes the horizontal theory by eliminating from the distance called for in the deed, the height of a cliff nearly perpendicular, which lay across the line. The argument of the inconvenience or impracticability of climbing a perpendicular cliff, is without force, because mathematics, being a scientific process, the surveyor, by offsets and like means, can accurately find the upper point of a perpendicular line from the last certain point fixed by the surveyor’s stick.

The plaintiff offered evidence to show that in Western North Carolina it was customary to measure on the surface line, which was excluded. A custom, in order to amount to notice to all persons, must, like the common law, be general. A local, or general local custom, is not notice to any one, unless there be actual knowledge of it, and it will not be treated as entering into the contract without such knowledge. 27 Am. & Eng. Enc. of Law, 743 et seq. The defendant is a citizen of New York, and it is admitted that he had no notice of any alleged local custom when he purchased the land. There was no error.

Affirmed.