The Southeastern reporter, Volume 38, page 896
By West Publishing Company (1901)
1. Where a conveyance of realty calls for a swamp, and thence along the swamp, grantee’s title extends only to the banks of the swamp, and not to the run of the swamp, since the rule that a call in a deed for the banks of a stream takes the title to the middle of the stream does not obtain where the call is for a swamp.
2. Where, in an action of trespass for cutting timber in a swamp, defendant claims title under deeds extending to the swamp, his possession under his deed can avail him nothing, as he has no color of title to the swamp.
Appeal from superior court, Pender county; Moore, Judge.
Action by J. W. Rowe and others against the Cape Fear Lumber Company. From a judgment for defendant, plaintiffs appeal. Reversed. H. L. Stevens, for appellants. James O. Carr, for appellee.
FURCHES, C. J. Action of trespass for cutting timber on Catskin swamp. The plaintiff claims under a grant from the state dated the 20th December, 1803, which is admitted to cover the swamp, the locus in quo. The defendant is the owner of three tracts of land (Nos. 1, 2, and 3) on the east side of said swamp, and one tract on the northwest side of said swamp. The calls in defendant’s deed to tract No. 3, on the east side, are to the “run” of the swamp, and thence with the run of the swamp; and plaintiff admits that this deed carries defendant’s title to that tract to the run of the swamp. But the calls on the other two tracts on the east side are to points on the margin or banks of the swamp, and thence with the swamp. And the tract on the northwest side of the swamp, according to the evidence, commenced on a pine standing on the edge or bank of the swamp about 22 rods from the thread or run of the swamp; thence various call* and distances to Bear Branch, which empties into Catskin swamp near its head; thence down the swamp to the beginning corner. The defendant contends that, being the owner of the land on both sides of the swamp, it is the owner of the entire swamp; that as the calls of its deeds are for the swamp, it is the riparian owner thereof; that its deeds on each side carry its title to the thread or run of the swamp, and the state in 1893 did not own the land covered by the grant to plaintiff. lf this contention be correct, the defendant is the owner of the bind, and plaintiff is not entitled to recover; while, on the other hand. if this contention of defendant is not correct, as the trespass is admitted, the plaintiff is entitled to recover. The plaintiff. in substance, asked the court to charge the jury that , defendant’s deeds calling for the edge or banks of the swamp, the banks or edge of the swamp was the boundary of defendant’s land; while, on the other hand, the defendant. in substance, asked the court to charge that defendant’s lines extended to the run, and did not stop at the edge of the swamp. ln fact, the defendant’s prayer asked the court to charge that lf they found that the defendant’s calls were to the swamp, and thence with the run of the swamp to the first station, they would find the run, and not the banks, of the swamp to be the defendant’s boundary line. This prayer was given, though none of defendant’s deeds called for the run of the swamp, except those of No. 3, on the east side of the swamp, and plaintiff admitted defendant’s claim to that tract. The charge was erroneous on this account. But we prefer to put our judgment on the merits, rather than this technical error.
While there may be some authorities found to the contrary, the general rule is that what are the boundaries is a question of law for the court, and where the boundaries are is a question of fact for the jury. This is well settled law in this state. Scull v. Pruden, 92 N. C. 168; Burnett v. Thompson, 35 N. C. 379; Clark v. Wagoner, 70 N. C. 706. So it was the duty of the court to instruct the jury what were the defendant’s boundaries.— whether they were the banks of the swamp, or the center or run of the swamp. This the court did, and told the jury that it was the run. lt is the undoubted rule that , where the calls in a deed are to and along the banks of a non-navigable river or creek, this takes the title to the middle of the stream. State v. Glen, 52 N. C. 321; Smith v. lngram. 29 N. C. 175; Williams v. Buchanan, 23 N. C. 535, 35 Am. Dec. 760. But this is where a creek or river or stream of water is called for,—where there is nothing but water, and the bed of the river or other stream ls not susceptible of being put to any other use, except to confine or carry the water of the stream. But does this fiction of the common law, that carries the riparian owner’s title