The opinion
Clare:, C. J.,
dissenting: Tbe call in this case, “tbence S. 83 W. 260 poles down the river to a spruce pine on a cliff,” is clear and unambiguous. This pine has been fixed by the jury at a point on the cliff 118 yards from the river bank.
The words “down the river” do not mean “with” the river, which bends and meanders. If those words were to control course and distance, the pine on the cliff would not be reached. The cardinal principle is that the more certain direction should be followed, Baxter v. Wilson, 95 N. C., 137 , to wit, the line should follow the course, “S. 83 W.,” and the distance, “260 poles,” to the “spruce pine on the cliff” which the jury have fixed. Following this course and distance to the identified pine, the directions of the deed would be obeyed in every particular; whereas, to follow the meanderings of the river is in contradiction of the course as given and would not tally with the distance specified and would not reach the corner named. The words “down the river” were not meant to overthrow and disregard course and distance, but merely to indicate that the direction was “down the river” and not up the river. Besides, to substitute the river as a boundary when it is not called for would not only change the course and lengthen the distance, but would require the creation by the Court of a new line from some indefinite and arbitrary point on the river bank, “118 yards to the spruce pine on the cliff.”
The course and distance and the general direction and the spruce pine on the cliff, being the more certain description, should be followed, and we should not substitute for it the meanderings of the river with changing courses and a longer distance and calling for the intercalation of a new line from an uncertain point on the river to the identified corner, “at the spruce pine on the cliff.”
It was in evidence, and not controverted, but adopted as true by both parties, that the corner on the spruce pine at' “C,” and at the spruce pine on the cliff at fig. 1, were 'established and marked as such by the survey of the entry upon which Grant No. 3487 was issued, but that the line between these points was not actually run. Beginning at C, the call is “then S. 83 W. 260 poles down the river to a spruce pine on a cliff.” Both spruce pines and the cliff are identified and called for. Then the boundary is indicated by course and distance, “S. 83 W. 260 poles.” The river is not called for as a boundary, and the line does not specify “with” the river, but merely that the course and distance and the spruce pine on the cliff are in the direction of “down the river.”
In Graybeal v. Powers, 76 N. C., 71 , the Court lays down the rule: “Where two corners are established, and the course and distance will not connect them, then the line between them must be run straight, making as small departure as may be from the course and distance called for in *633 tbe grant.” Tbis rule bas been repeatedly approved, and as late as Lumber Co. v. Bernhardt, 162 N. C., 466.
Tbe learned judge followed tbis rule, and be is supported also by all tbe evidence in tbis case. It appears that tbe plat of tbe survey upon wbicb tbe grant was issued bas a straight line running from tbe spruce pine at 0 to tbe spruce pine on tbe cliff at fig. 1. Tbe course of tbe river is not a straight line. Tbe plats have always been held competent evidence, and they are now expressly made so by Eevisal, 1596. Tbe witness Wilson testified that tbe line between tbe two spruce pines was not run, but that tbe two spruce pine corners were established and marked at tbe comers, and that a straight line from one spruce pine to tbe other would cut twice across tbe river, wbicb here makes a bend, and tbe surveyor said that tbe enterer wanted tbe falls and a straight line between tbe two corners so as to cross tbe river and get tbe falls if be could; that bis idea was to run a straight line between tbe two spruce pines, as that would cross tbe river, wbicb be wanted to do if be could. He is corroborated by tbe entry plat, wbicb shows a straight line.
In Sandifer v. Foster, 2 N. C., 237 , tbe call was “thence S. to a white oak, thence along tbe river.” In Whitaker v. Cover, 140 N. C., 280 , and tbe cases cited therein, tbe calls were “along” tbe line of another tract, “thence with tbe river,” “with tbe course of tbe swamp,” etc. These are very different from tbis case. Here there i.s no call “along tbe river” nor “with tbe river” nor “with tbe meanderings of tbe river,” but there is a straight line called for between two spruce pines wbicb is platted on tbe survey attached to tbe grant as a straight line, and there is tbe declaration of tbe surveyor that tbe enterer desired a straight line in order that be could cross tbe river so as to get tbe falls, and tbe further fact that tbe lower corner is not on tbe river, but some distance from it. In Rogers v. Mabe, 15 N. C., 180 , tbe call was “up tbe river to a stake.” There being neither fixed corner nor course and distance (as in tbis case), tbe Court held it meant “along tbe river,” of course.
It would seem that tbe finding of tbe jury and tbe charge of the court are in accordance with tbe law and tbe evidence.