Category: Court Record

Court Record: Public Laws, pg. 193 (1893)

Public laws and resolutions of the state of North Carolina passed … – Page 193 (1893)

CHAPTER 231.
An act to authorize the commissioners of Pender county to compromise and fund the debt of said county.

The General Assembly of North Carolina do enact:

SECTION 1. That the board of commissioners of Pender county are commissioners hereby authorized to compromise, adjust and settle the outstanding authorized indebtedness known as the ” old debt” of said county on such terms compromise, &c, outstanding as may be agreed upon between them and the creditors and holders county indebted of such old claims. ” Authorized to sell such part of land purchased with “poor-house fund” as may not be necessary for poor-house purposes. Authorized to sell other lands. Proceeds of sale and certain taxes applicable to payment of compromise debts.
Special fund.

SEC. 2. That in order to provide a fund with which to pay off such debts as they may be able under the provisions of this act to compromise, adjust and settle, they are hereby authorized to sell so much of the land purchased by the county with the special poor-house fund as may not in their judgment be necessary for poor-house purposes, and also such other lands owned by the county as are not necessary for public or county purposes, and the proceeds of the sale of said lands, together with all such moneys as may be derived from the collection of back taxes, excepting therefrom five hundred dollars which may be used by them to carry into effect the provisions of chapter three hundred and forty-five of the laws of eighteen hundred and ninety-one, due the county for years prior to the passage of this act; and all such moneys, taxes and revenues above the expenses incident to the same as may hereafter be derived by the county from sources subjects of taxation, and property from which no revenues have heretofore been received by the county, may be appropriated by the said board of commissioners to the payment of the debts adjusted by them ; and when the said moneys shall be so appropriated by the said board of commissioners the same shall constitute in their hands a special fund applicable only to the payment of the debts adjusted by them until the said debts shall have been paid and satisfied.

SEC. 3. That this act shall be in force from and after its ratification.
Ratified the 2d day of March, A. D. 1893

Court Record: Public Laws (1893)

Public laws and resolutions of the state of North Carolina passed … – Page 150 (1893)

Justices of the peace.
Township rights.
Conflicting laws repealed.

Beaver Dam is hereby established and made the voting or polling place for said new township above named.

SEC. 4. That A. J. Brooks and T. C. Griffin, who are now acting justices of the peace in and for said Marshville township, shall continue to act as such till their respective terms of office shall expire according to law.

SEC. 5. That said township shall have the right, powers and privileges now granted to other townships by law.

SEC. 6. That all laws in conflict with this act are hereby repealed.

SEC. 7. That this act shall be in force from and after its ratification.
Ratified the 28th day of February, A. D. 1893.

CHAPTER 194.
Commissioners
of Pender county
authorized to fix
toll at Big Bridge
ferry, Ac.
Conflicting laws repealed.
An act to place the Big Bridge ferry under the jurisdiction of the board of commissioners of Pender county.

The General Assembly of North Carolina do enact:

SECTION 1. That the board of commissioners of Pender county are hereby authorized to fix the rates for transferring passengers and property across the Northeast river at what is known as the Big Bridge ferry, and are empowered to make all necessary regulations for the regular, speedy and safe transferring of persons and property across said river at said ferry.

SEC. 2. That all laws and clauses of laws in conflict with this act are hereby repealed.

SEC. 3. That this act shall be in force from and after its ratification.
Ratified the 28th day of February, A. D. 1893.

Court Record: Rowe, J.W. (1901)

The Southeastern reporter, Volume 38, page 896
By West Publishing Company (1901)

—POSSESSlON.
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

Court Record: Heyer, Margaret E (1901)

The Southeastern reporter, Volume 38, page 876
By West Publishing Company (1901)

Appeal from superior court, Pender county; Timberlake, Judge.

Application by Margaret E. Heyer, administratrix of the estate of John C. Heyer, deceased, for leave to issue execution against D. W. Rivenbark. From a judgment affirming an order denying the application, complainant appeals. Reversed. Stevens, Beasley & Weeks, for appellant. J. T. Bland, for appellee.

CLARK, J. This was a motion, September 9, 1897, by an administrator, before the clerk, for leave to issue execution, upon notice served on defendant, based on an affidavit which sets out that on December 23, 1885, plaintiff’s intestate obtained a judgment against defendant before a justice of the peace for $148.73 and costs, and on the same day caused the same to be docketed in the office of the clerk of the superior court of Pender county, and that no part of said judgment has been paid, and that the whole thereof is still due. The record states the defendant “resisted the motion, and pleaded the statute of limitations in bar of the motion.” The clerk found the allegations of the affidavit to be true, and added a further finding that at the date of docketing the judgment the defendant “was, and is now, the owner of real estate situate in Pender county of value not exceeding $1,000, and no homestead has ever been assigned defendant.” The clerk denied the motion, which judgment was affirmed by the judge on appeal, and plaintiff appealed to this court.