Boone v. . Collins

161 S.E. 543, 202 N.C. 12, 1931 N.C. LEXIS 160

• Court: Supreme Court of North Carolina
• Decided: December 23, 1931
• Status: Published

Opinion

Stacy, 0. J.

This is a special proceeding to establish the dividing line between adjoining landowners. The plaintiff says the line is at one place, the “Solid Line” .shown on the map, and the defendant says it is at another, the “Dash Line” shown thereon.

The burden of establishing the true location of the boundary line was . on the plaintiff. Hill v. Dalton, 140 N. C., 9, 52 S. E., 273. But this was inadvertently placed on both parties at the same time. Power Co. v. Taylor, 194 N. C., 231, 139 S. E., 381. Similar instructions were held for error in Garris v. Harrington, 167 N. C., 86, 83 S. E., 253, and Tillotson v. Fulp, 172 N. C., 499, 90 S. E., 500. The burden of proving the affirmative of a single issue cannot rest on both sides at the same time. Carr v. Bizzell, 192 N. C., 212, 134 S. E., 462; Speas v. Bank, 188 N. C., 524, 125 S. E., 398.

The rule as to the burden of proof constitutes a substantial right, and its erroneous placing is reversible error. Hosiery Co. v. Express Co., 184 N. C., 478, 114 S. E., 823.

New trial.