#### DEN ON DEMISE of JOSEPH NORCOM *vs.*THOMAS H. LEARY.

In all cases the effect of long and notorious possession, as affording presumptive evidence of right, is very powerful. In questions of boundary, it is at least tantamount to a general reputation.

When a course is resorted to for want of a better guide to find the *terminus*' or boundary of a tract of land, it is the course as it existed at the time to which the description of the tract of land refers. If it appears that because of the magnetic variation, that course is not the same with that which the needle now points out, it is the duty of the jury to make allowance for such variation, in order to ascertain the true original line.

The case of *McNeill*v *Massey,*3 Hawks, 91, cited and approved.

December 1842.

Appeal from the Superior Court of Law of Chowan County, at Fall Term, 1842, his Honor Judge Bailey presiding.

This was an action of Ejectment. The question was, whether the line A, 1, 2, 3, on the annexed plat, or the line A, b, c, d, or the line A, B, C, D, was the line dividing the lands of Joseph Norcom, from the lands of the defendant, Thomas H. Leary. The lessor of the plaintiff proved, that he and Edmund Norcom, his father, under whom he claimed, had been in the actual possession, fof forty years or more, up to the boundary A, b, c, and on the line from c to d, as far as the point marked “ Norcom’s fence,” of the lands to the east of said line. The plaintiff then proved, that a fence extended all the way from c to d. and that the defendant, previously to the commencement of this action, moved that portion of the said fence, which extended from the point marked *“*Norcom’s fence” to the letter d, and put it on the line extending from “ Norcom’s fence” to figure 3-, and had possession of the land included between these lines and the Albe-marleSound. The defendant deduced his title to the land occupied by him and designated on the annexed plat as *50a Leary’s land ” from 17S6 down to himself — the several of conveyance describing it as adjoining the lands now owned by the lessor of the plaintiff. He then shewed the C0Py of a deed from Charles Roberts, formerly Sheriff of Chowan, to Edmund Noreom, the father of the lessor of the plaintiff, which conveyed to him, by virtue of an execution againt one Thomas Simons,- a certain tract of land lying in Chowan County, and described as follows : “ Beginning at a small dogwood at the crooked gully, and running along John Simons’ and Thomas Charlton’s line, So. 18, E. 62 poles, to a poplar; then along Charlton’s line, No. *70s,*E. 47 poles, to a hickory, Charlton’s corner; then along Charl-ton’s line, So. 35, E. 137 poles, to the Sound side; then along down the Sound side 120 poles, to John Norcom’s line; then along said line No. 43, W. to the middle of the gully swamp ; then up the meanders of the swamp and gülly to the. first station.” The surveyor, who had been previously introduced by the plaintiff)- identified the said copy as a copy of the deed by which he made the said survey. The surveyor also proved, that the beginning at A was admitted both by the lessor of the plaintiff and the defendant — .that in running from A at the crooked gully, the courses of the said deed to the-Sound, neither of the corner trees called for in the deed was to be found — that running the courses and distances called for in the deed would gives the lines A, 1, 2, 3. It was in evidence that from a point near A, on the dotted line from A to b, was a fence, which extended on the line from b to c, and from cto *“*Norcom’s fence,” which|had been there for some forty years, which- fence formed a part of Norcom’s enclosure, and was known by common reputation to be the line fence between the tracts of land owned by Noreom and Leary. It was also in evidence, that the land between “Norcom’s fence” on the annexed plat and the Sound, was wood land, and that, about 19 years ago; the fence from c to “ Norcom’s fence,” was extended to the Sound at d, which fence, since that time, had been considered to be the line fence between the said tracts of land. The lessor of the plaintiff also proved, that along the fence 'running from “ Norcom’s fence” to the sound at d, several trees were found, *51having the appearance of having been marked as line trees ; and it was proved that they had been, by some of the old men of the neigborhood,?whojhad since died, pointed out as the line trees of the two tracts of land, of which the defendant and the lessor of the plaintiff were in possession. It was also in evidence, that two of the trees on the line last mentioned were cut into and blocked out, and one of them had the appearance of having been marked as a line 42 or 52 years ago, and the other about 90 years ago. The defendant also introduced evidence tending to prove, that the line A, 1, 2, 3, was the true boundary of his land. The surveyor, upon examination on the part of the plaintiff, stated that he had established the line A, B, C, D, as the true boundary; that the line A, 1, 2, 3, is the line run according to the courses and distances of the deed from the Sheriff Roberts to Edmund Norcom, and the line A, b, c, d, is the line run according to Norcom’s fence and the line trees before spoken of; that in running the line A, B, C, D, he had allowed two degrees for the variation of the needle, which had taken place since the date of the deed from Roberts to Norcom. The witness stated, that he had been a surveyor for many years, and he had discovered that the needle had varied one degree in twenty years. Upon cross-examination he stated, that no variation was allowed for the needle at the time of the deed from Roberts to Norcom. The defendant contended, that the beginning at A being known and agreed upon, the several courses and distances called for in the said deed from that point to the Sound should be run ; that as there was no evidence shewing where the two corners from A were, the surveyor should have run the courses of the deed and have stopped at figure 1, where his distance gave out, and in his second course he should have stopped at figure 2, where the distance in that course gave out, and from figure 2, he should have run the course of the deed to figure 3, on the sound ; that, no line of marked trees having been called for in the said deed, the testimony, which had been given in relation to the fence on the several courses of the deed, and the marked trees on the third course, should be disregarded by the jury. His Honor instructed the jury, that, *52jf the corners called for in the first and second courses were known and ascertained, the jury should disregard the evidence, which had been given in relation to the fence, and the marked trees. But as these corners had 1 ong since disappeared, and there was no evidence where they stood, then the evidence, which had been given in relation to the fence and the marked trees was material, in order to enable the jury to determine where they stood. For if the jury believed that the fence and the marked trees, spoken of by the witnesses, were on the line dividing the lands of Norcom and Leary, they would disregard the courses and distances of the deed, and establish the line A, b, c, d, as the true line. The counsel for the plaintiff requested his Honor to instruct the jury, that, if they believed from the testimony of the surveyor, that the variation of the needle spoken of by him had taken place, then they could find that the line A, B, C, D, was the true line. His Honor declined to give the instruction prayed for. Thejury returned a verdict for the plaintiff, and judgment being rendered pursuant thereto, the defendant appealed.

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      *Kinney*for the plaintiff.

*A. Moore*for the defendant.

Caston, J.

In our opinion, this is a very plain case against the appellant, in all cases the effect of long and notorious possession, as affording presumptive evidence of right, is very powerful. In questions of boundary especially, it authorises the inference of any fact which can rationally be inferred to make such possession consistent with right. It shews a claim distinctly asserted by the possessor, and acquiesced in by those most interested to repel it if unfounded, and most likely to ascertain "whether it be or be not well founded. *As*such it is at least tantamount to a general reputation of boundary.

In the deed of the sheriff to Edmund Norcom, of the 15th March, 1706, the boundaries of the land conveyed, so far as they affect the present controversy, are thus described, viz; “beginning at a small dogwood at the crooked gully, and running along John Simons’ and Thomas Charlton’s (deceased) line, South 18, East 62 poles to a poplar; thence along Charlton’s line No. 70s, East 47 poles to a hickory, Charlton’s corner; thence along Charlton’s line, So. 25, East 187 poles, to the Sound side.” The beginning of the deed being admitted on all hands, the dispute turned *mainly*upon the inquiry where were the second and third coméis of this tract? *In law,*these corners were “the hickory” and “the poplar,” wherever situate; and the evidence offered was received, as tending to establish where these trees were. It is conceded on the part of the defendant, that if the trees yet existed, and could be identified, they would controul the courses and distances called for in the deed. But they are gone, and surely the destruction or decay of the trees did not change the *termini*of the land. Certainly it was competent to shew, after their destruction or decay, where these trees had stood; and this fact might be shewn, either by direct testimony thereof, or by testimony from which the fact could be satisfactorily inferred. *McNeill v Massey,*3 Hawks 91. Now, to us, it seems that the testimony given was not only *55pertinent and relevant for this purpose, but was entitled to very great consideration from the jury.

The deed informs ifs that the poplar will be found by running from the beginning corner, South 18, East 62 poles, *along Charlton's line.*It tells us that the hickory is known as “ Charlton’s corner,” and that it will be found by running from the poplar No. *72i,*East 47 poles, “along Charlton’s line.” Charlton’s line is then one of the the indicia by which the poplar and the hickory are to be ascertained. — . They are both *in*that line, and the hickory is one of Charl-ton’s corners. Besides, the next line from this corner of Charlton’s, is represented as running thence along Charlton’s line to the Sound side. Thus Charlton’s line is referred to throughout as a known boundary, by which the corners of this tract are to be ascertained ,* and certainly if it were a known line, and can now be found, it furnishes, according to all our adjudged cases, a much surer and safer guide to direct us to these *termini,*than can be afforded by the courses and distances called for.

Now, when it is seen that almost from the date of this deed a fence has been uninterruptedly kept up, extending through the entire body of the cleared laud; that during all this time it was held without dispute to be the line of division between the Charlton and Norcom tracts; and that, from the termination of this fence, and in its direction continued through the woods, an old line of marked trees is found leading down to the Sound; it would be difficult to resist the conviction, that Charlton’s line was known ; that the possession of the adjoining proprietors respectively conformed thereto; and that the fence and the line of marked trees from the fence to the Sound indicate that known line at this day.

It is not necessary that we should decide the question arising upon the instruction which was prayed for by the plaintiff, and which the' court declined to give. But as the point appears to us free from difficulty, We will not withhold the expression of our opinion upon it. When a Course is resorted to for want of a better guide to find the *terminus*of a tract of land, it is the course as it existed at the time to *56which the description of the tract refers. And if it be shewn to the satisfaction of the jury, that, because of the magnetic variation, that course -is not the same with the course which the needle now points out, it is their duty to allow for the variation, so as to enable them to pursue the direction of the original course. However the needle may vary, the boundaries of the land remain unchanged.

Per Curiam. ' Judgment affirmed.