#### DOE ON THE DEMISE OF THE COMMISSIONERS OF BEAUFORT *vs.*THOMAS DUNCAN.

It is error in the Court, to submit a material fact, in a cause to the jury, without any evidence to support it.

Whether the doctrine of alluvion applies to any case, when a water boundary is not called for, though the course and distance called for have been coterminous ? Qjjere.

ActioN of EJECTMENT, for a portion of land lying in tbe town of Beaufort, tried before bis Honor Judge Manly, at Spring Term, 1853, of Carteret Superior Court.

By various grants, deeds and acts of Assembly, it was made to appear, tbat a body of land, extending along Core Sound and tbe Thoroughfare, as delineated in tbe diagram below, was and bad been for many years in tbe Commissioners of the town of Beaufort, as a body corporate, and tbat tbe lessors of tbe plaintiff were, at tbe bringing of this action, corporators duly appointed, in and by regular succession, under tbe laws regulating tbe corporation. Tbe defendant gave in evidence a deed from one James Davis to Benjamin T. Howland, and from Benjamin T. Howland to himself, bearing date on 4th day of June, 1832, conveying to him *“*the lot of land in tbe town of Beaufort, known and distinguished in the plan of tbe said town as number 111.”

Tbe defendant offered in evidence an ordinance of tbe Commissioners of tbe town of Beaufort, dated May 1816, tbat Jonathan Price should survey tbe town of Beaufort, and make a plat thereof. Also, be offered in evidence a private act of Assembly, entitled “ an act to confirm an accurate survey of tbe town of Beaufort, in tbe county of Carteret, and for other purposes,” which act recites tbat, “whereas, disputes have arisen concerning tbe true lines of tbe streets and lots of tbe town of Beaufort, in consequence of which the-inhabitants have employed Jonathan Price to *235survey and make an accurate plan of tbe said town: Be it therefore enacted, and that tbe lines and plan of tbe town of Beaufort, as surveyed and established by Jonathan Price., shall hereafter be considered in all cases as the lines and plan of'Said town of Beaufort.” '

The defendant then offered the plan of map of the town made by Mr. Price, and which was proven and registered in the Register’s Office, and filed in that office, whereof the sketch below delineates a sufficient portion to -present the-question upon which the opinion of the Court proceeds.

It appears from that map, that lot number one hundred

and eleven (111), as represented in the map referred to, does not reach the thoroughfare, but that there is a small gore of land (which is that in controversy), between his Western line and the water. The scales and measurement of lot No. Ill, were 50 feet on Front street, 175 on the line of lot 110, and 182 feet, with the line of lot No. 85.

The defendant proved by James Davis, that, in the year 1817, he was the owner of lot 111, and that the water then encroached upon his lot, and that he then drove down piling along what he conceived to be his Western line, to keep it out, and filled it in. That he had been informed by old *236citizens of Beaufort, that the channel between Fiver’s island and the land in controversy, used to be dry at low tides, and that a log was put across the same, for persons'to walk over, and that the dogs used to cross the same in going to hunt ' on the island, and that, in his clay, a pilot-boat could not turn about in the channel; but that, at this time, the channel was between fifty and a hundred yards wide, with a sufficient depth of water to admit vessels and steamboats of the largest size to navigate.

Defendant also proved, by one Joel H. Davis, who is the son of the foregoing witness, that he lived with his father on the lot No. Ill; that his father built a house on it, and that the ordinary high water would come up to the edge of the piazza of the house on this lot; and that, West of the house, there was a dry sand shoal for fifty yards; that a storm had cut open the channel, and that the same gave away and cut away the shore, and that the water ebbed fifty feet West of his father’s piling.

He also proved by one Whitehurst, that he first knew the land in controversy, in 1811, and that there is more land there now than was in 1811. The possession of the defendant, of lot 111, had been continuous in him, and those under whom he claimed, since 1817. He insisted that this survey by Price, and its recognition by the act of Assembly, with the subsequent deeds, amounted to evidence of title in him, and that it, with the testimony of the witnesses, showed that the line was co-termining with the water mark, and that the strip in question, being by gradual accretion, belonged to him.

It was insisted, on the part of the plaintiff, that the lessors of the plaintiff were not only entitled to recover the premises in dispute, but that their title included all the land between .the high water and low water mark; that the deed of the . defendant, not calling for the water or land, he was confined to the mathematical line, and that this was a question of law.

*237The Court was of opinion, and instructed the jury, that where the land in the town of Beaufort was bounded by the water of the harbor, the margin made by the ordinary high tide was the *true boundary ;*the space alternately covered ■and left bare by the flux and reflux of the tides, not being the subject of entry in North Carolina. Me further instructed them, that, in relation to the subject of a water boundary, they were to fix the boundary on the land West of and adjacent to lot 111, at the time it was laid off and sold; and if the water boundary was identical with the mathematical boundary of the lot called for in the plan of the town, then additions made to the land by gradual accretions, through the action of the windp and tides, belong to the lot and •owner of it. Under these and other instructions, not excepted fo, the jury found a verdict for the defendant.

The lessors of plaintiff moved for a rule, etc., which was •granted and discharged, and plaintiff appealed.

*J. W.*Bryan, for plaintiff.

*Donnell,*for defendant.

Battle,

J. It cannot be doubted, we think, that the defendant claimed under the lessors of the plaintiff. His lot is described in his. own title deeds, to be “ that lot of land situated in the old town of Beaufort, and distinguished in the plan of said town, by No. Ill, (except forty-two feet on the North part,)” &c., and it does not appear that the lot had ever been claimed, otherwise than under the ’Commissioners to whom the two hundred acres of land upon which the .old town was, had been .conveyed, for the purpose,of •being laid off into lots, and sold. The defendant then was ■estopped to deny their title, and the .only question was, whether the Western limit i®f his lot was the mathematical line from C to A ? Or was the line of high water mark, .between the main land and Piver’s island.? The defendant *238contends for the latter line, as his true boundary, alleging, that, when the .lot was originally laid off and sold, his Western line, though not calling for the thoroughfare, was in fact co-terminous with the high water mark of it, and he was, therefore, according to a well .settled principle of law, entitled to the gradual accretion or alluvion made by the recession of the water. Were the allegations supported *hj*the proof, an interesting question would arise, whether the doctrine of alluvion applies to any case where a water boundary is not called for, though the course and distance, called for, may have been conterminous with it ? We do not feel at liberty to decide the question, because we are clearly of ■opinion that the evidence given on the part of the defendant, does not raise it. That evidence consists of the map of the survey of the town of Beaufort, made by Jonathan Price, in the year 1816, and the testimony of James Davis, a former owner of the lot, and his son Joel PI. Davis. Price’s map shows that the water of the thoroughfare, between the main land and Piver’s island, was, in the year 1816, nearly fifty feet West of the mathematical line from C to A. That line, then, was at that time, so far as the map proves anything, the Western boundary of the defendant’slot, No. 111. The testimony of the Messrs. Davis is not very explicit, but -supposing it to be established that, in the year 1817, the earliest time to which it seems to refer, the water of the thoroughfare encroached upon the land, so as to come up to and be co-terminous with the line from C to A, it certainly could not have the extraordinary effect of attaching to the lot in question the right of alluvion, which it had never had before. That proposition was not even contended for in argument.

The charge of his Honor applied to the condition of the Western boundary, as it existed when the lot was laid off and sold, and we are unable to find in the bill of exceptions the slightest proof that, at any time prior to the year 1817 *239the mathematical line, from C to A, was co-terminous with the water mark, high or low, of the thoroughfare. His Honor ought, therefore, to have instructed the jury, that there was no evidence on which to raise the question of al-luvion in favor of the defendants, and that, consequently, he was to be confined to the mathematical line, from-C to A, as his Western boundary. For this error of the Court, in submitting a material fact in the cause to the jury, without any evidence to support it, the judgment must be reversed, and ,a *venire de novo*awarded.

Judgment reversed, and a *venire die novo.*