Connor, J.,
after stating the case: This cause was before us at the Eall Term of 1905 (140 N. O., 246) upon an appeal from a judgment of nonsuit. The nonsuit was taken upon an intimation of his Honor that he would charge the jury as set out in that appeal. The evidence sent up was indefinite and fragmentary. We were of the opinion that, in the then condition of the record, the merits of the case had not been disposed of, and directed a new trial. At the trial before Judge Cooke, specific issues were submitted, and the finding of the jury upon them settles the controversy adversely to plaintiffs’ contention. If, as found by the jury, the Sudderth line was not from the post-oak, east to the stake, the plaintiffs’ contention that the “Sudderth-Johnson line controls the call in the deed from Berry to Isaac Eincannon” fails.
The principle for which plaintiffs contend, that a call for a natural object, or a well-settled fixed line, will control course and distance, does not avail them, because the jury find that the line to which they contend the call carries them
is not fixed. How can they go to the Sudderth-Johnson (samé as the Berry) line, disregarding the call for the root, when they fail to establish such line ? In this condition of the record we must seek some other source to aid us in fixing the line. The plaintiffs failing to establish the Sudderth (or Berry) line, would be unable to locate their land unless they can resort to some other source or call in their deed. We are thus compelled to adopt the rock as the beginning point and run the line called for to the next station — the Duckworth line — discarding the reference to the Sudderth line. In addition to this conclusion from the finding upon the first issue, and pointing to the rock, the jury find that, at the time of and cotemporaneous with the execution of the deed from Berry to Isaac Eincannon, a survey was made with a view to the execution of the deed in which the rock was made the beginning point, and the calls were therefrom. In the first trial, the notes of Mr. Huffman’s testimony were very meagre and indefinite. In this record it is set out in full. He says that he surveyed the land, at the request of Berry, some thirty years ago, and not long before the deed was made to Eincannon. Berry was there; Ein-cannon was not — he was blind.
“I
began 22 poles north from the railroad track, at a rock near a branch — same one that is there now. I would judge the rock to weigh at least 100 pounds. It is two feet out of the ground. It was evidently set up there. * * * I think there was one pointer — a pine — there.- I did not know of any reputation as to that rock being a corner before I surveyed the tract, but since then I know the reputation that it is a corner of the Johnson and Sudderth lines. Mr. B. A. Berry, now deceased, pointed out this rock to me as a corner of the Sud-derth, or Johnson, tract. That was more than thirty-one years ago, when Berry owned the land in controversy, but before he acquired the Johnson-Sudderth tract.” He fur
ther said that he ran from the rock west to the Duckworth laud; that he ran the calls as appears in the deed from Berry to Eincannon. The first call was a well-marked line, and at the end found some pointers, marks about the age of those on line; they were between forty and sixty years old. He did not put the rock there; does not know who did; he did not mark any line — the marks were already there. There was evidence tending to show that the rock was put there in 1858 or 1859. Denton swore that he ran the line from the rock some fifteen years ago. Berry was present — no one else. This evidence, if accepted by the jury, was sufficient to sustain defendants’ contention in regard to the third issue, and fixed the location of the land conveyed by Berry to Isaac Eincannon, under which plaintiffs claim, from the rock west to the Duckworth land. This testimony brings the case clearly within the rule laid down in
Elliott v. Jefferson,
133 N. C., 207.
The plaintiffs except to the admission of the declarations of Berry. The exceptions cannot be sustained. Without regard to the true location of the Johnson-Sudderth line, it' was clearly competent for Berry to make a new line from the rock west to the Duckworth land for the purpose of conveying to Eincannon, and this the jury find he did, and Ein-cannon accepted the deed made in accordance with the boundaries so established. It may be that they supposed that the rock was in the Sudderth line; and if that line was fixed and there was no controlling evidence to the contrary, it would, as we said in the first appeal, control; but, as the case is now presented, the jury have found that the Johnson-Sudderth line is not located according to plaintiffs’ contention — is not located at all; hence, the rock, the fixed point, must control. This being so, unless there is error in the admission of testimony or his Honor’s instructions, the plaintiffs necessarily fail to make out their case. It becomes a
question of boundary, dependent upon the location of tbe beginning point.
We have carefully examined plaintiffs’ prayers for instructions, together with the instructions given. Many propositions of law included in the special instructions are .correct, but not applicable to the issues.' His Honor stated the real questions involved in the third issue, which was conclusive of the controversy, clearly, and instructed the jury correctly. There was evidence tending to show that the post-oak was the original corner of the Sudderth land; there was also evidence to the contrary, and-the jury were the sole judges of its weight. It seems that the finding of either issue against the plaintiffs was fatal to their case. There was no exception to the issues submitted. It would seem that, in view of the complaint, no question of title acquired by an ouster, ripening by possession, could arise. It is not necessary, however, to consider this phase of the case because of the verdict on the fourth issue. The exceptions to his Honor’s instructions upon that issue cannot be sustained. He may well have instructed them as a matter of law that there was no such
possessio pedis
shown as was necessary to base a claim to title without color. Plaintiffs requested his Honor to instruct the jury that, if they found that W. A. Eincannon had been in the adverse possession of the
locus in quo
for seven years under color of title, they should answer the fifth issue “Yes.” This view is based upon the contention that the deed from Isaac Ein-cannon to W. A. Eincannon of 21 April, 1887, covers the
locus in quo.
It will be noted that this deed does not call for the rock, but, beginning at a. white-oak-on the southern line of the Isaac Eincannon tract, calls for a line north 70 poles, crossing the railroad to a stake in Perry’s line; then west with Berry’s line 120 poles, to a-stake, his corner. The plaintiff W. A. Eincannon says that, eliminating all ques
tions arising from tbe other deeds, this call carries him to the Berry (formerly Sndderth-Johnson) line. He says that, having shown possession up to Berry’s line by an ouster, under color, ■ such possession, at the end of seven years, ripened into a perfect title. He is confronted with the difficulty in making this contention that he has not been able to locate, according to his claim, the Berry line, for which his deed calls.
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Connor, J.,
after stating the case: This cause was before us at the Eall Term of 1905 (140 N. O., 246) upon an appeal from a judgment of nonsuit. The nonsuit was taken upon an intimation of his Honor that he would charge the jury as set out in that appeal. The evidence sent up was indefinite and fragmentary. We were of the opinion that, in the then condition of the record, the merits of the case had not been disposed of, and directed a new trial. At the trial before Judge Cooke, specific issues were submitted, and the finding of the jury upon them settles the controversy adversely to plaintiffs’ contention. If, as found by the jury, the Sudderth line was not from the post-oak, east to the stake, the plaintiffs’ contention that the “Sudderth-Johnson line controls the call in the deed from Berry to Isaac Eincannon” fails.
The principle for which plaintiffs contend, that a call for a natural object, or a well-settled fixed line, will control course and distance, does not avail them, because the jury find that the line to which they contend the call carries them
is not fixed. How can they go to the Sudderth-Johnson (samé as the Berry) line, disregarding the call for the root, when they fail to establish such line ? In this condition of the record we must seek some other source to aid us in fixing the line. The plaintiffs failing to establish the Sudderth (or Berry) line, would be unable to locate their land unless they can resort to some other source or call in their deed. We are thus compelled to adopt the rock as the beginning point and run the line called for to the next station — the Duckworth line — discarding the reference to the Sudderth line. In addition to this conclusion from the finding upon the first issue, and pointing to the rock, the jury find that, at the time of and cotemporaneous with the execution of the deed from Berry to Isaac Eincannon, a survey was made with a view to the execution of the deed in which the rock was made the beginning point, and the calls were therefrom. In the first trial, the notes of Mr. Huffman’s testimony were very meagre and indefinite. In this record it is set out in full. He says that he surveyed the land, at the request of Berry, some thirty years ago, and not long before the deed was made to Eincannon. Berry was there; Ein-cannon was not — he was blind.
“I
began 22 poles north from the railroad track, at a rock near a branch — same one that is there now. I would judge the rock to weigh at least 100 pounds. It is two feet out of the ground. It was evidently set up there. * * * I think there was one pointer — a pine — there.- I did not know of any reputation as to that rock being a corner before I surveyed the tract, but since then I know the reputation that it is a corner of the Johnson and Sudderth lines. Mr. B. A. Berry, now deceased, pointed out this rock to me as a corner of the Sud-derth, or Johnson, tract. That was more than thirty-one years ago, when Berry owned the land in controversy, but before he acquired the Johnson-Sudderth tract.” He fur
ther said that he ran from the rock west to the Duckworth laud; that he ran the calls as appears in the deed from Berry to Eincannon. The first call was a well-marked line, and at the end found some pointers, marks about the age of those on line; they were between forty and sixty years old. He did not put the rock there; does not know who did; he did not mark any line — the marks were already there. There was evidence tending to show that the rock was put there in 1858 or 1859. Denton swore that he ran the line from the rock some fifteen years ago. Berry was present — no one else. This evidence, if accepted by the jury, was sufficient to sustain defendants’ contention in regard to the third issue, and fixed the location of the land conveyed by Berry to Isaac Eincannon, under which plaintiffs claim, from the rock west to the Duckworth land. This testimony brings the case clearly within the rule laid down in
Elliott v. Jefferson,
133 N. C., 207.
The plaintiffs except to the admission of the declarations of Berry. The exceptions cannot be sustained. Without regard to the true location of the Johnson-Sudderth line, it' was clearly competent for Berry to make a new line from the rock west to the Duckworth land for the purpose of conveying to Eincannon, and this the jury find he did, and Ein-cannon accepted the deed made in accordance with the boundaries so established. It may be that they supposed that the rock was in the Sudderth line; and if that line was fixed and there was no controlling evidence to the contrary, it would, as we said in the first appeal, control; but, as the case is now presented, the jury have found that the Johnson-Sudderth line is not located according to plaintiffs’ contention — is not located at all; hence, the rock, the fixed point, must control. This being so, unless there is error in the admission of testimony or his Honor’s instructions, the plaintiffs necessarily fail to make out their case. It becomes a
question of boundary, dependent upon the location of tbe beginning point.
We have carefully examined plaintiffs’ prayers for instructions, together with the instructions given. Many propositions of law included in the special instructions are .correct, but not applicable to the issues.' His Honor stated the real questions involved in the third issue, which was conclusive of the controversy, clearly, and instructed the jury correctly. There was evidence tending to show that the post-oak was the original corner of the Sudderth land; there was also evidence to the contrary, and-the jury were the sole judges of its weight. It seems that the finding of either issue against the plaintiffs was fatal to their case. There was no exception to the issues submitted. It would seem that, in view of the complaint, no question of title acquired by an ouster, ripening by possession, could arise. It is not necessary, however, to consider this phase of the case because of the verdict on the fourth issue. The exceptions to his Honor’s instructions upon that issue cannot be sustained. He may well have instructed them as a matter of law that there was no such
possessio pedis
shown as was necessary to base a claim to title without color. Plaintiffs requested his Honor to instruct the jury that, if they found that W. A. Eincannon had been in the adverse possession of the
locus in quo
for seven years under color of title, they should answer the fifth issue “Yes.” This view is based upon the contention that the deed from Isaac Ein-cannon to W. A. Eincannon of 21 April, 1887, covers the
locus in quo.
It will be noted that this deed does not call for the rock, but, beginning at a. white-oak-on the southern line of the Isaac Eincannon tract, calls for a line north 70 poles, crossing the railroad to a stake in Perry’s line; then west with Berry’s line 120 poles, to a-stake, his corner. The plaintiff W. A. Eincannon says that, eliminating all ques
tions arising from tbe other deeds, this call carries him to the Berry (formerly Sndderth-Johnson) line. He says that, having shown possession up to Berry’s line by an ouster, under color, ■ such possession, at the end of seven years, ripened into a perfect title. He is confronted with the difficulty in making this contention that he has not been able to locate, according to his claim, the Berry line, for which his deed calls. The jury finds that it runs from the rock west; hence his call would be color only to that line, and any possession beyond would be without color and could ripen only after twenty years of
possessio pedis,
and this the jury find that he had not had. Besides, no issue presenting the theory upon'which this instruction is based was asked or submitted. If he had made a general allegation of title, as pointed out in
Mobley v. Griffin,
104 N. C., 112, he could have maintained his right to recover by showing title out of the State and seven years’ adverse possession under color. He elected, however, to set out his title, and the issues submitted were in accordance with his allegation. Besides, the record shows that it was agreed that all questions of fact were to be settled by the verdict upon the issues, and that the question of title was to be adjudged by the Court as a matter of law. There was, therefore, no phase of the pleadings, or issues, presenting the principle involved in the prayer.
We do not perceive how, in the light of the evidence, and the verdict upon the issues, his Honor could have given the instruction. We have examined the record with care, and find no error. The case has been tried upon its merits, and the jury have found against the plaintiffs’ contention. We notice that the action is for trespass, although the plaintiffs ask that they be declared the owners of the land described in the complaint “to the said post-oak, and the line running east from the same.” This prayer enlarges the scope of the action from one simply to recover damages for entering upon
the close and invading tbe possession into an action to settle a disputed boundary and adjudge title. There is no objection to this being done, under our system of pleading, in one action, provided it is clearly understood. The old action of
trespass quare clausum
fregit, being confined to an injury to the possession, unless the title was put in issue and settled, did not operate as an estoppel. The civil action, by which all rights are enforced and wrongs remedied, avoids many of the technical difficulties surrounding the old forms of action. While the advantages of the reformed procedure are manifest, the necessity for so drawing pleadings that parties may know exactly what is included in the issue and settled by the judgment is equally clear. Nothing herein said shall be construed to operate as an estoppel against the plaintiff’s claiming title to any land of which he, or those under whom he claims, has been in the adverse possession for more than twenty years.
The judgment must be
Affirmed.