USA > North Carolina > Western North Carolina; a history, 1730-1913 > Part 39
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COLOR OF TITLE. In all countries one who enters upon land and holds possession under any paper writing of record that proclaims to the world that he is there by some real or pre- tended authority will secure title by adverse occupancy sooner than will he who "squats" upon land without any pretence that he has any right to be there other than his bare posses- sion. In the early days of North Carolina the State granted large tracts of land to William Cochran and William Tate in July, 1795; and in July, 1796, just one year later, William Cathcart secured grants which were found to lap on those lands already granted to Tate and Cochran. It was impos- sible for Tate and Cochran to put settlers on their lands at that time, and having the senior grant they rested on their rights. But Cathcart was unwilling to lose any portion of the land he had paid the State ten cents an acre for, even though part of it was already the property of Tate and Coch- ran. So, in September, 1838, he leased all this disputed land to Abram Johnson, put him in possession of a part of it, and told him to exercise rights of ownership over as much as he did not actually occupy as he could. In order to do this Johnson built a forge near the Old Fields of Toe, and cut timber and burnt charcoal at many other places on the land. More than one hundred years after all these grants had been taken out the Supreme court decided that Cathcart's lease to Johnson was color of title to the lands described therein,
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and that his title had ripened in seven years after the date of the lease and Johnson's entry and occupancy, the lease having been duly recorded in Morganton. Thus a junior grant had held over its senior, because of this color of title. (Cochran v. Improvement Co., 127 N. C., 387.)
ADAMS V. WESTFELDT. As early as 1850 or 1851, the late Stephen Munday entered land on Little Fork ridge, the Fos- ter ridge, south and southeast of Haw Gap, and south of Thunderhead mountain, because he believed that copper was in the land; but positive indications of its existence were not found until about 1858. The war coming on and interest dying out, nothing further was done about investigating the indications until about 1899.
In 1869 George Westfeldt of New Orleans bought, at the bankrupt sale of E. H. Cunningham, four tracts of land on the waters of Hazel creek which had been granted to the latter. In 1877 Westfeldt, through his agent, Tennent, tried to locate these tracts, but had to call in Wm. R. McDowell, who lived near Franklin, to assist. He located them several miles from where Tennent thought they lay. About 1888 copper was discovered on one of these tracts and men named Cook, Hall, Mark Bryson and others attempted to find what grant covered the copper deposit. They discovered that Epp. Everett of Bryson City had several grants which he had not succeeded in locating satisfactorily, but which he appeared to think were several miles from the Westfeldt lands. It was charged that, in attempting to locate one of these grants on the copper vein, Adam Wilson had hacked a tree and then smoked the hacks with pine splinters in order to give the marks the appearance of age. On the other hand, Adams' side claimed that persons in the interest of Westfeldt had chopped the marks entirely out of a corner tree and had car- ried the marks off in the block of wood which had been re- moved. From this smoked tree it was claimed the line had been run in 1890; but it was not satisfactory, and was aban- doned, until in 1899, when W. S. Adams, of Massachusetts, bought up the Everett grants and took possession of the cop- per lands. An old man living in Tennessee by the name of Proctor, who had carried the chain when the Everett grants were originally located, was brought to the land to help establish Adams' contention as to the location. Westfeldt
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had warned Adams not to trespass on this land and, in 1901, he sued Adams in Swain county and won the suit. But a new trial was granted by the Supreme court on the ground of the admission of incompetent evidence. The case was, by consent, removed to Haywood county, where the North Caro- lina Mining Company was made an additional defendant, and it set up a claim to the land in dispute, under the act of 1893, for determining adverse claims to real estate. Westfeldt won again, but the Supreme court granted still another new trial, because the trial judge had failed to call proper attention to the difference between substantive evidence and evidence that went merely to the credibility of a witness. Then the North Carolina Mining Company brought its bill in equity in the United States court for the Western District of North Carolina, to clear the title of the cloud placed upon it by Westfeldt's claim to the land. Judge Pritchard decided that he had jurisdiction, notwithstanding the pendency of the ac- tion between substantially the same parties in the State court. He heard the testimony, sitting as a chancellor, and without a jury to enlighten the court upon the disputed facts; and a short time before the case was to have been tried in Hay- wood, he filed his decree holding against Westfeldt.
After several years of effort the Supreme court of the United States decided that Judge Pritchard had not had jurisdiction when he took the case from the Superior court of Haywood county, and in 1910 the cause was tried at Waynesville, the plaintiff winning. The Supreme court of North Carolina in 1912 set the verdict aside, however, and the case will have to be tried again. 13 Both Westfeldt and Adams have since died.
AN ERRONEOUS IMPRESSION. It is sometimes said that the Supreme court of North Carolina has decided that a munici- pality may legally freeze a prisoner to death. This is wrong, the decision in Moffit v. Asheville having held quite to the contrary (103 N. C., p. 237). It was decided that when towns are "exercising the judicial, discretionary or legisla- tive authority conferred by their directors, or are discharging a duty imposed solely for the public benefit, they are not liable for the negligence of their officers, unless some statute subjects them to liability for such negligence." Conse- quently, they held that the city was not liable for a severe
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cold and illness caused to Moffit by confinement, January 5, 1887, in a cell in a room from which window lights had been broken, the city having provided fuel and a stove and police officers to keep the room comfortable.
CRANBERRY MAGNETIC IRON MINES. From Hon. A. C. Avery of Morganton it has been learned that about 1780 Reuben White took out a grant for the 100 acres supposed to cover the iron deposit at these mines, and that Hon. Waightstill Avery took out four small grants surrounding the Reuben White grant. 14 In addition, he took out hundreds of 640-acre grants, covering almost all of the North Toe valley from its source to Toecane, except that here and there along the valley some older grants intervened. He also took grants to lands along Squirrel, Roaring, Henson and Three- Mile creeks, and the lower valley of South Toe and Linville riv- ers. In 1795 William Cathcart took out two large grants, one known as the "99,000-Acre Tract" and the other as the "59,000-Acre Tract," which two grants covered practically all of what is now Mitchell and Avery counties, except some tracts along the Blue Ridge, and embrace all the tracts along the streams theretofore granted to Waightstill Avery. He devised all these lands to his son, Isaac T. Avery. A controversy arose between the father of John Evans Brown, agent for the claimants under the Cathcart grants, which resulted in the execution of compromise deeds in 1852, by which I. T. Avery got a quit claim to about 50,000 acres of land, so as to include most of the land de- scribed, including the Cranberry Mines. The Reuben White tract had in the meantime passed by a succession of con- veyances to William Dugger, who sold his interest to Hoke, Hutchinson and Sumner; Dugger, Avery and Brown having entered into a written agreement under which Avery and Brown were to hold one-half of one-fourth each of the min- eral interest in all the Dugger land outside of the Reuben White tract. But, before Dugger conveyed to Hoke, Hutchinson and Sumner, he had contracted to sell to John Harding, Miller and another, and had put Harding in possession, so that the Hoke purchase was from Harding and associates, taking the legal title from Dugger. Judge A. C. Avery, as executor of his father's (I. T. Avery) estate, gave notice to Hoke and company of the equitable claim of Brown
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and Avery in three thousand acres, embracing the Cranberry ore bank, before they bought from Dugger, and in the ensu- ing litigation compelled Hoke and Company to pay between fif- teen and twenty thousand dollars for the Brown and Avery interests in the Cranberry ore bank.
BEFORE THE LITIGATION BEGAN. Exactly when the Cran- berry Iron mine was first operated cannot be determined now. Joshua Perkins and a man named Asher built what was afterwards known as the Dugger mine, on the right bank of the Watauga in what is now Johnson county, Tenn., and four miles above Butler. Remains of the old forge are still visible there, just above the present iron bridge, the forge itself having been washed away in the freshet of 1886 or 1887. Tradition says that Perkins and Asher sold this forge to Wil- liam, Abe and John Dugger, and then went to Cranberry and built the forge there. These Dugger brothers were the sons of Julius Dugger who owned a farm on the right bank of the Watauga, opposite Fish Springs; and soon took charge of the forge Perkins had built at Cranberry. But when either forge was built "no man knoweth." Only one fact could be secured, and that was that in November, 1886, Joshua Perkins bought a bill of goods at Curtis and Farthing's store at Butler. All agree that he was then over eighty years of age, and that he died soon afterwards. Assuming, then, that he was eighty-six years of age in 1886, and that he was at least twenty-one when he built the Dugger forge four miles above Butler, the Cranberry forge most probably was built not earlier than 1821 to 1825. Benjamin Dugger was also concerned in this Cranberry forge, but afterwards went to Ducktown, Tenn. Upon his death John Hardin went into possession of the mine, either by his own right or as guard- ian of Able's heirs. It was sold by John Hardin or his son Councill Hardin, to Gen. R. F. Hoke for $10,000 and he sold to the company now owning it. Shep. M. Dugger, in his "Bal- sam Groves of the Grandfather Mountain" (p. 15), says: "In the year 1850 the now famous Cranberry Iron mines were in their infantile state of development. The Dugger family had been the first to build forges and hammer iron in Ten- nessee, and the writer's grandfather and great uncle had now crossed the line, and purchased the mines and tilt-hammer forge at Cranberry."
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THE CARTER AND HOKE LITIGATION. Thomas D. Carter had an equitable contract for the sale of a part of the interest held under bond for title by John Hardin, Miller and another, and this led to the litigation which culminated in the case of Thomas D. Carter v. Robert F. Hoke and others (64 N. C. Rep., p. 348). It appears that, in May, 1867, the plaintiff agreed to convey his interest in the Cranberry Iron mines to Gen. Hoke and others for $44,000, and when he tendered a deed there- for he was given a sight draft on a New York bank for the amount of the purchase money, which draft was protested and never paid; but that the reason it had not been paid was because it had been well understood by the parties to the transaction that, although it was a sight draft, the funds to meet it were to have been provided by the proceeds of a sale of the same property by Hoke and associates to another pur- chaser, which contemplated sale Carter had defeated. Upon this state of facts a receiver was appointed and the sale of the property was enjoined. At the Spring term, 1869, of the Superior court of Madison county, Hoke moved to dissolve the injunction and end the receivership. Upon the hearing of that motion it appeared that Hoke and associates had effected another sale of the property to the Russells and asso- ciates, for $50,000, and they claimed to have been inno- cent purchasers without notice. Judge Henry granted the motion; but on appeal the Supreme court continued the injunc- tion against a sale of the property till Carter had been paid and the question as to whether the Russells were innocent purchasers had been tried. Hoke and company soon after- wards compromised with Carter and the title to the property was thus settled so far as Carter was concerned.
A FURTHER STORY. OF THE LITIGATION. The interests of the original purchasers of the White and Avery Ore-Bank tracts, as well as the interests of the claimants of adjacent lands under a forge bounty grant (junior to the 59,000-acre grant of 1796), were sold for partition under a decree of the Supreme court at its session at Morganton before the Civil War, and was bought by William Dugger. He subsequently paid the purchase money and got a decree that James R. Dodge, clerk of the Supreme court at Morganton, should make title to him. Before getting his title, however, but after he had paid the purchase money, William Dugger en-
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tered into an agreement with Isaac T. Avery and J. Evans Brown that the three should hold an equal one-third interest in all the mineral outside of the original White Ore-Bank tract. But this agreement seems not to have been registered; and, the Civil War coming on, the sessions of the Supreme court at Morganton were abolished. Then Col. Dodge, the clerk, died without having made title to William Dugger. Meantime, Judge A. C. Avery secured through Hon. B. F. Moore an ordinance of the Convention of 1866 authorizing Mr. Free- man, who was then clerk of the Supreme court at Raleigh, to make the title to William Dugger which Col. Dodge should have made. Clerk Freeman made this title to Dugger, but failed to include in it any reference to the equitable agree- ment which had been made between William Dugger, Isaac T. Avery and J. Evans Brown to the effect that each should have a one-third interest in the property outside of the orig- inal White Ore-Bank tract. William Dugger, too, had sold his interest in the property without excepting the two-thirds interest equitably owned by Avery and Brown, and executed a deed therefor. These purchasers were proposing to sell under their deed from Dugger without notice to Avery and Brown; whereupon Judge A. C. Avery, as executor of Isaac T. Avery, who had died, and J. Evans Brown gave notice of their equity to the proposed purchasers, and thereby com- pelled the purchasers from Dugger to buy their interest in the property. This covered all interests in the property. 15
THE NANTAHALA TALC CASE. About 1895 or 1896 there was considerable litigation over the rich and valuable talc and marble mine or quarry at Hewitts in Swain county. Thomas and others had bought from the late Alexander P. Munday, as executor of the late Nimrod S. Jarrett. The Nantahala Marble and Talc Company of Atlanta had also bought land adjoining from the same party. On a question of the location of a boundary line between these properties the case was tried at Asheville before the late Judge Paul, United States district judge of Virginia, who had been trans- ferred to this jurisdiction for the purpose of hearing this case. He decided it in favor of Thomas and his co-plaintiffs; and it was appealed to the circuit court of appeals, where in Feb- ruary, 1901, this decision was sustained. (106 Fed. Rep., p. 379, and 76 Fed. Rep., p. 59.)
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NOTES.
1Mrs. Elizabeth Smith died in October, 1912.
"W. H. Penland, having agreed to furnish valuable information to the government, was not tried.
$116 N. C., 570.
$126 N. C., 760.
44 Dev., p. 1.
"Dev., p. 1.
"Fisher s. Bank, 132 N. C., 769.
Bank v. Bank, 127 N. C. Rep., 432.
.Smathers ». Bank, 135 N. C., 410.
1.Jones v. Com., 135 N. C. Rep., p. 215.
11Bank v. Maddux, 156 N. C.
12Pub. Laws 1903, Ch. 283.
""In this decision it was held that lands in the vacant and unsurveyed class as shown on the maps required to be made by the act of 1836 and deposited in register of deeds office at Franklin were subject to entry, Justice Walker discussing the matter fully.
14Cochrans v. Improvement Co., 127 N. C., 387, and Dugger v. Robbins, 100 N. C., 1.
1'Letter of Hon. A. C. Avery to J. P. A., February 7, 1913.
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CHAPTER XVII SCHOOLS AND COLLEGES
A LAGGARD IN EDUCATION. North Carolina has little rea- son to be proud of her early history in the cause of educa- tion. For years there was greater illiteracy in this State than in any other, and the improvement of late years has not been any greater than it should have been. In 1816 the legislature appointed a committee with Archibald D. Murphey at its head to suggest a plan for State education. The plan suggested in 1817 provided for primary schools in each county and for ten acad- emies in different parts of the State, with the State Univer- sity at the head. A school for deaf, dumb and blind was pro- vided for and the children of the poor were to be supported while at school. But this benevolent scheme to provide for the children of the poor defeated the entire plan. 1
THE LITERARY FUND. In 1825 the legislature created a literary fund which was to come from the sale of swamp lands and other sources. In 1837 part of a large sum derived from the United States was added, making the entire fund about $2,000,000. 2
PUBLIC SCHOOLS BEGIN. With the income from this and a tax voted by most of the counties public schools were begun in 1840. In 1852 Calvin H. Wiley was elected superintend- ent of public instruction, which office he held till 1865. The schools grew from 777 in 1840 to 4,369 in 1860. The number of all students in colleges, academies and primary schools increased from 18,681 in 1840 to 177,400 in 1860. This ap- plies to the entire State.
LOSS OF THE LITERARY FUND. The State kept the literary fund intact during the entire period of the Civil War, keep- ing the schools open and conducting them with such books as could be provided. It needed the literary fund for the soldiers in the field, but it would not touch a penny except to educate its children. But this fund was held by the banks of the State, and when the Reconstruction legislature voted not to pay the Confederate debt, the banks were ruined, for the State owed them large sums. Thus one million dollars of the fund was lost.
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THE EDUCATIONAL GOVERNOR. Gov. Aycock did much for education during his term from 1900 to 1904. Rural libraries were started and a loan fund provided.
PIONEER TEACHERS AND PREACHERS. In 1778 or 1779 Samuel Doak, who was educated at Princeton College, N. J., came to Washington county and soon after his arrival opened a good school in a log cabin on his own farm. This is said to have been the first real institution of learning in the Missis- sippi valley. In 1788 Doak's school was incorporated by North Carolina as Martin Academy. In 1795 the territorial legislature incorporated Martin Academy as Washington Col- lege, located at Salem, and Doak was made its president. ' In 1785 the legislature of North Carolina incorporated Da- vidson Academy, near Nashville.
THE FIRST SCHOOLMASTER OF BUNCOMBE. Soon after the Swannanoa settlement was established in 1782, a school was started in accordance with the principles of the Presbyte- rians. " Robert Henry taught the first school in North Caro- lina west of the Blue Ridge. "4
OLD-FIELD SCHOOLS. Col. J. M. Ray gives the following description of these antiquated methods of teaching the young idea how not to shoot : In lieu of kindergarten, graded and normal schools "was the Old-Field school, of which there were generally only one or two in a county, and they were in session only when it was not 'crop-time.' They were at- tended by little and big, old and young, sometimes by as many as a hundred, and all jammed into one room-a log- cabin with a fire-place at each end-puncheon floor, slab benches, and no windows, except an opening made in the wall by cutting out a section of one of the logs, here and there. The pedagogue in charge (and no matter how large the school there was but one) prided himself upon his knowledge of and efficiency in teaching the 'three R's'-readin', 'ritin' and 'rith- metic-and upon his ability to use effectively the rod, of which a good supply was always kept in stock. He must know, too, how to make a quill pen from the wing-feather of goose or turkey, steel and gold pens not having come into general use. The ink used was made from 'ink-balls'- sometimes from poke-berries-and was kept in little slim vials partly filled with cotton. These vials not having base enough to stand alone, were suspended on nails near the writer. The schools
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were paid for from a public fund, the teacher boarding with the scholars. The cominon plan was for all to study aloud, and this was universally so when getting the spelling lesson, which was the concluding exercise and most exciting part of the inside program. Two of the good spellers of the school were appointed by the teacher as captains, and they made selections alternately from the scholars for their respective sides in the spelling match. The first choice was determined by spitting on a chip and tossing it up, the captain tossing it asking the other 'Wet or dry?' and the other stating his choice. If the chip fell with the side up as designated, he had 'first pick' of the spellers, and of course selected the one thought best. If he lost, his opponent had first pick. Another plan was 'Cross or pile?' when a knife was used the same way, the side of the handle with the ornament being the cross. Some of these old pedagogues were very rigid in discipline almost tyrants a day without several floggings being unusual. They sometimes resorted to queer plans to catch up with mischie- vous scholars; one I distinctly remember-it is not necessary to say why I so distinctly remember it-was to put the school on its behavior and leave the building, cut around to some crack or opening and watch inside movements. This watch- ing generally resulted in something.
OLD SCHOOL GAMES. "The outside sports made bearable all inside oppression, however. 'Base,' 'cat,' 'bull-pen,' and 'marbles,' were the leading popular games, and were entered into with a zest and enthusiasm unknown in these times. The sensational occurrence of the session was, however, the chase given some party who, in passing, should holler 'school but- ter!' But such party always took the precaution to be at a safe distance and to have a good start, and stood not upon the order of his going, but went for all that was in him; for to be taken was to be roughly handled-soused in some creek, pond or mud-hole. The pursuers were eager and determined, sometimes following for miles and miles, and having but small fear of being punished for neglect of studies. On the con- trary, the offence was of so high an order (and I never under- stood just why) that sometimes the teacher would join in the race.'' 5
A PRIMITIVE SPELLING BOOK. Col. Allen T. Davidson gives this picture of a time earlier than any Col. Ray can
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remember: "The first schoolmaster I remember (on Jona- than's creek) was an old man by the name of Hayes. He was a good old man, and had a nice family, and had come to that back-country to 'learn' the young idea how to shoot. I was about six years old (1825). We could not then get spelling-books readily. I had none, and was more inclined to fun than study. The old man or his daughters dressed a board as broad as a shingle, printed the alphabet on it, bored a hole through the top, put a string in it, tied it around my neck and told me to get my lesson. I did not make much progress; but was greatly indulged by the old man, and 'went out' without the 'stick,' which was the passport for the others. The old man wore a pair of black steel-rim specta- cles, with the largest eyes I ever saw, and was a great smoker. There were no matches in those days, and no way to get fire except by punk and steel; hence, he had to keep fire covered up in the ashes in the fire-place to light his pipe. When I would bring in the sticks with which to replenish the fire, I would usually bring in two or three buckeyes, which I slipped into the ashes as I covered the wood. The wood would smolder to a coal and the buckeyes would get hot, but they would not explode until the air reached them, when they would explode like the report of a musket, scattering the hulls, ashes and embers all over the house, in the old man's face and against his spectacles. This always happened whenever he uncov- ered the coals to light his pipe. The good old man never did discover the cause of the explosions. He has long since gone to his reward, and I remember him with tenderest affec- tion. " 6
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