Yarser, J.
It appears from the record in this case, as well as from the oral argument, that there is no question of title involved in this controversy. The defendant expressly admits, in his answer, the first allegation of the complaint,' which avers title and possession, subject only to the location of the “line of low bushes on the west side of Great Creek.” Each muniment in the paper title of the respective parties calls for the same line, to wit: “The line in the Williams grant, or 500 acre survey, which, runs down the edge of Great Creek as the 'low bushes goes,’ to the beginning.”
Since the point A, in plaintiff’s contentions, is the same as 1, in the defendant’s contentions, the location of this point is taken as admitted, and this is the beginning point of the line in controversy. Hence, the location of the dividing line is the sole province of the jury.
What the line is, is necessarily a question of law. Tatem v. Paine, 11 N. C., 64; Burnett v. Thompson, 35 N. C., 379; Marshall v. Fisher, 46 N. C., 112; Hurley v. Morgan, 18 N. C., 426; Waters v. Simmons, 52 N. C., 542; Osborne v. Johnston, 65 N. C., 22; Clark v. Wagoner, 70 N. C., 706; Scull v. Pruden, 92 N. C., 168; Johnson v. Ray, 72 N. C., 273; Davidson v. Shuler, 119 N. C., 584; Jones v. Bunker, 83 N. C., 324; Redmond v. Stepp, 100 N. C., 213; Peebles v. Graham, 128 N. C., 218; Echerd v. Johnson, 126 N. C., 409; Rowe v. Lumber Co., 138 [337] N. C., 465; Sherrod v. Battle, 154 N. C., 345; Gudger v. White, 141 N. C., 507; Lumber Co. v. Bernhardt, 162 N. C., 460; Power Co. v. Savage, 170 N. C., 625; Brooks v. Woodruff, 185 N. C., 288.
Where the line is, is a question of fact. Tatem v. Paine, 11 N. C., 64; Burnett v. Thompson, 35 N. C., 379; Marshall v. Fisher, 46 N. C., 112; Hurley v. Morgan, 18 N. C., 426; Waters v. Simmons, 52 N. C., 542; Osborne v. Johnston, 65 N. C., 22; Clark v. Wagoner, 70 N. C., 706; Scull v. Pruden, 92 N. C., 168; Davidson v. Shuler, 119 N. C., 584; Jones v. Bunker, 83 N. C., 324; Redmond v. Stepp, 100 N. C., 213; Peebles v. Graham, 128 N. C., 218; Echerd v. Johnson, 126 N. C., 409; Rowe v. Lumber Co., 138 N. C., 465; Sherrod v. Battle, 154 N. C., 345; Gudger v. White, 141 N. C., 507; Lumber Co. v. Bernhardt, 162 N. C., 460; Power Co. v. Savage, 170 N. C., 625; Brooks v. Woodruff, 185 N. C., 288.
The issue submitted is only intended, as it appears from the record, to determine the true location of the dividing line between the Williams survey and the plaintiff’s lands. The controversy waged around this one question. Several exceptions were taken by the defendant to the admission of evidence during the trial, and several of these appear to contain hearsay evidence relating to plaintiff’s title to the lands; this was apparently harmless, because the question of title was not involved, and they may not occur again, hence we will not discuss them.
The trial court charged the jury as follows:
“If you find, from the evidence, that the defendant’s grant goes to that line, and that he entered into possession of any part of the land covered by the grant, then he would be deemed in law to be in lawful possession of it all, as covered by the grant, up to the line marked from 1 to 14, inclusive, and you would answer this issue, line 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14; unless you so find, further, that the plaintiff and those under whom he claims, have been in the adverse possession for 20 years before bringing this action of the disputed area, under known and visible lines and boundaries that is, up to a known line and boundary, as alleged and contended for by the plaintiff, and shown on the map by the letters, A, B, C, and D.” This same view is presented several times in the charge.
The latter part of this quoted instruction, as to adverse possession by plaintiff and those under whom he claims, appears to be error. The controversy was solely as to the true location of the dividing line, which, according to admissions of the parties, must be located wherever the line described as follows: “thence down the edge of Great Creek as the low bushes goes, to the beginning,” is located.
This call necessarily relates to the date of the survey contained in the grant, to N. A. Williams, the defendant. The entry on which this [338] grant was issued, is dated 2 April, 1878, and tbe grant appears of date 6 February, 1880; consequently, tbe inquiry is as to tbe true location of tbis line, as it was on these dates.
Tbe physical changes at tbis place that have occurred since tbe dates of tbe survey and grant do not enter into tbis call in tbe description in tbe grant. Tbe call does not float with tbe changes in tbe waters, nor shift with tbe growth of bushes or trees incidental to later drainage or floods.
In Lynch v. Allen, 20 N. C., 62, Gaston, J., says: “But it does not follow that because tbe river bad deserted tbe bed in which it flowed when tbe deed was executed that tbe boundary of tbe land of tbe lessor of tbe plaintiff has shifted with it.” Wilhelm v. Burleyson, 106 N. C., 382.
Tbe instant case cannot involve any question of accretion, or avulsion, and -the line is as tbe “low bushes goes,” to be located by tbe jury at tbe dates of tbe entry and grant called for by plaintiff’s allegations.
If tbis line is correctly located along tbe line of figures, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14, then tbe plaintiff’s allegation, as well as bis paper title, fixes such line as tbe true dividing line, and be does not allege ownership to tbe east of tbis line. If, however, tbe line indicated on tbe map with tbe letters, A, B, C, and D, is tbe correct location of tbe true dividing line, then tbe plaintiff owns up to tbis line, according to tbe admission in defendant’s answer. Tbe adverse possession and tbe use of tbe lands in dispute, are both competent facts, material upon tbe question of tbe location of tbe dividing line, and if tbe instruction bad allowed tbe same to have been considered only for tbis purpose, it would have been correct. When there is no question of title, adverse possession cannot be so used, or as set out in other parts of tbe charge. These instructions contain a correct statement of tbe law, as to constructive possession, and, also, as to adverse possession ripening title without color, in tbe abstract, but to allow adverse possession to extend tbe plaintiff’s title, in tbe instant case, beyond tbe allegations in bis complaint, constitutes error. Upon these instructions, tbe jury could have located tbe western boundary of tbe Williams 500 acre survey, where tbe defendant claimed its true location is, and, nevertheless, they could have found tbe dividing line to be located as claimed by tbe plaintiff, if they found that tbe plaintiff bad bad adverse possession of tbe disputed area for tbe requisite length of time, although, such a finding would have located tbe disputed area east of tbe plaintiff’s eastern boundary set out in bis complaint.
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Yarser, J.
It appears from the record in this case, as well as from the oral argument, that there is no question of title involved in this controversy. The defendant expressly admits, in his answer, the first allegation of the complaint,' which avers title and possession, subject only to the location of the “line of low bushes on the west side of Great Creek.” Each muniment in the paper title of the respective parties calls for the same line, to wit: “The line in the Williams grant, or 500 acre survey, which, runs down the edge of Great Creek as the 'low bushes goes,’ to the beginning.”
Since the point A, in plaintiff’s contentions, is the same as 1, in the defendant’s contentions, the location of this point is taken as admitted, and this is the beginning point of the line in controversy. Hence, the location of the dividing line is the sole province of the jury.
What the line is, is necessarily a question of law. Tatem v. Paine, 11 N. C., 64; Burnett v. Thompson, 35 N. C., 379; Marshall v. Fisher, 46 N. C., 112; Hurley v. Morgan, 18 N. C., 426; Waters v. Simmons, 52 N. C., 542; Osborne v. Johnston, 65 N. C., 22; Clark v. Wagoner, 70 N. C., 706; Scull v. Pruden, 92 N. C., 168; Johnson v. Ray, 72 N. C., 273; Davidson v. Shuler, 119 N. C., 584; Jones v. Bunker, 83 N. C., 324; Redmond v. Stepp, 100 N. C., 213; Peebles v. Graham, 128 N. C., 218; Echerd v. Johnson, 126 N. C., 409; Rowe v. Lumber Co., 138 [337] N. C., 465; Sherrod v. Battle, 154 N. C., 345; Gudger v. White, 141 N. C., 507; Lumber Co. v. Bernhardt, 162 N. C., 460; Power Co. v. Savage, 170 N. C., 625; Brooks v. Woodruff, 185 N. C., 288.
Where the line is, is a question of fact. Tatem v. Paine, 11 N. C., 64; Burnett v. Thompson, 35 N. C., 379; Marshall v. Fisher, 46 N. C., 112; Hurley v. Morgan, 18 N. C., 426; Waters v. Simmons, 52 N. C., 542; Osborne v. Johnston, 65 N. C., 22; Clark v. Wagoner, 70 N. C., 706; Scull v. Pruden, 92 N. C., 168; Davidson v. Shuler, 119 N. C., 584; Jones v. Bunker, 83 N. C., 324; Redmond v. Stepp, 100 N. C., 213; Peebles v. Graham, 128 N. C., 218; Echerd v. Johnson, 126 N. C., 409; Rowe v. Lumber Co., 138 N. C., 465; Sherrod v. Battle, 154 N. C., 345; Gudger v. White, 141 N. C., 507; Lumber Co. v. Bernhardt, 162 N. C., 460; Power Co. v. Savage, 170 N. C., 625; Brooks v. Woodruff, 185 N. C., 288.
The issue submitted is only intended, as it appears from the record, to determine the true location of the dividing line between the Williams survey and the plaintiff’s lands. The controversy waged around this one question. Several exceptions were taken by the defendant to the admission of evidence during the trial, and several of these appear to contain hearsay evidence relating to plaintiff’s title to the lands; this was apparently harmless, because the question of title was not involved, and they may not occur again, hence we will not discuss them.
The trial court charged the jury as follows:
“If you find, from the evidence, that the defendant’s grant goes to that line, and that he entered into possession of any part of the land covered by the grant, then he would be deemed in law to be in lawful possession of it all, as covered by the grant, up to the line marked from 1 to 14, inclusive, and you would answer this issue, line 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14; unless you so find, further, that the plaintiff and those under whom he claims, have been in the adverse possession for 20 years before bringing this action of the disputed area, under known and visible lines and boundaries that is, up to a known line and boundary, as alleged and contended for by the plaintiff, and shown on the map by the letters, A, B, C, and D.” This same view is presented several times in the charge.
The latter part of this quoted instruction, as to adverse possession by plaintiff and those under whom he claims, appears to be error. The controversy was solely as to the true location of the dividing line, which, according to admissions of the parties, must be located wherever the line described as follows: “thence down the edge of Great Creek as the low bushes goes, to the beginning,” is located.
This call necessarily relates to the date of the survey contained in the grant, to N. A. Williams, the defendant. The entry on which this [338] grant was issued, is dated 2 April, 1878, and tbe grant appears of date 6 February, 1880; consequently, tbe inquiry is as to tbe true location of tbis line, as it was on these dates.
Tbe physical changes at tbis place that have occurred since tbe dates of tbe survey and grant do not enter into tbis call in tbe description in tbe grant. Tbe call does not float with tbe changes in tbe waters, nor shift with tbe growth of bushes or trees incidental to later drainage or floods.
In Lynch v. Allen, 20 N. C., 62, Gaston, J., says: “But it does not follow that because tbe river bad deserted tbe bed in which it flowed when tbe deed was executed that tbe boundary of tbe land of tbe lessor of tbe plaintiff has shifted with it.” Wilhelm v. Burleyson, 106 N. C., 382.
Tbe instant case cannot involve any question of accretion, or avulsion, and -the line is as tbe “low bushes goes,” to be located by tbe jury at tbe dates of tbe entry and grant called for by plaintiff’s allegations.
If tbis line is correctly located along tbe line of figures, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14, then tbe plaintiff’s allegation, as well as bis paper title, fixes such line as tbe true dividing line, and be does not allege ownership to tbe east of tbis line. If, however, tbe line indicated on tbe map with tbe letters, A, B, C, and D, is tbe correct location of tbe true dividing line, then tbe plaintiff owns up to tbis line, according to tbe admission in defendant’s answer. Tbe adverse possession and tbe use of tbe lands in dispute, are both competent facts, material upon tbe question of tbe location of tbe dividing line, and if tbe instruction bad allowed tbe same to have been considered only for tbis purpose, it would have been correct. When there is no question of title, adverse possession cannot be so used, or as set out in other parts of tbe charge. These instructions contain a correct statement of tbe law, as to constructive possession, and, also, as to adverse possession ripening title without color, in tbe abstract, but to allow adverse possession to extend tbe plaintiff’s title, in tbe instant case, beyond tbe allegations in bis complaint, constitutes error. Upon these instructions, tbe jury could have located tbe western boundary of tbe Williams 500 acre survey, where tbe defendant claimed its true location is, and, nevertheless, they could have found tbe dividing line to be located as claimed by tbe plaintiff, if they found that tbe plaintiff bad bad adverse possession of tbe disputed area for tbe requisite length of time, although, such a finding would have located tbe disputed area east of tbe plaintiff’s eastern boundary set out in bis complaint.
If tbe plaintiff desires to set up title to any part of tbe lands in dispute, which may be east of tbe location of tbe western line of tbe Williams survey, as finally located by tbe jury, it will be necessary [339] for bim to ask for and obtain permission of tbe trial court to amend bis complaint accordingly. If be does so amend, be can then use adverse possession, or any other mode of proving title, tbat tbe facts will sustain; but as tbe pleadings are now constituted, tbe issue of title does not arise.
Issues can arise only upon the pleadings. C. S., 580. Fortescue v. Crawford, 105 N. C., 30; Wright v. Cain, 93 N. C., 296; Patton v. R. R., 96 N. C., 456.
Since there is no allegation in tbe complaint, which can suggest or support a claim, on tbe part of tbe plaintiff, tbat bis eastern line is located east of tbe defendant’s western line, as set out in tbe Williams 500-acre survey, then no issue could be submitted to tbe jury embracing such a claim, and tbe jury ought not to be instructed so as to permit them to locate tbe plaintiff’s eastern line beyond tbe defendant’s, western line. In Miller v. Miller, 89 N. C., 209, it was held error to submit an issue not raised upon tbe pleadings, so in tbe instant case, it is equally erroneous to allow tbe issue to include land not claimed in tbe complaint.
Tbe defendant presents by bis exceptions a challenge to tbe correctness of.the denial of bis motions for judgment as of nonsuit. We do not think tbat there'is any merit in this contention. There appears to be evidence tending to show tbat tbe true location of tbe line of low bushes along Great Creek, is where tbe plaintiff claimed, and other evidence tending to show tbat this line is located where tbe defendant claimed. Tbe question of title is not involved and tbe burden is upon tbe plaintiff to show tbat tbe true location of this dividing line is where be claims it to be, and, in no event, upon this evidence could a nonsuit be properly entered.
In Rhodes v. Ange, 173 N. C., 25, tbe Court discusses controversies of this kind with much clearness. This latter case was instituted to procession land and to determine tbe dividing line between tbe lands of tbe parties. In tbe instant case, the action was originally begun in trespass, and tbe trespass was denied and tbe title admitted and tbe issue joined only as to tbe location of tbe dividing line between tbe parties. Hence, tbe trial runs itself into what is practically a processioning proceeding. A failure to note tbe distinction between a proceeding where tbe location of a line is solely involved, and one where tbe title is also involved has given rise to much of tbe confusion in this regard. In Rhodes v. Ange, supra, tbe Court says: “Our processioning act is similar in some respects to tbe 'writ of perambulation’ at common law, which was sued out by consent of both parties,, when they were in doubt as to tbe bounds of their respective estates, and was directed to tbe sheriff, who was commanded to make tbe ‘perambulation’ with a jury, and to set tbe bounds and limits between them in certainty. There [340] it was done by the consent of the parties, and when there was no dispute as to the title and none as to the right to occupy the adjoining’ tenements, while with us either of the adjoining proprietors, where a dispute as to the true dividing boundary has arisen, is entitled to have the land processioned, without the other’s consent.” Or he may institute his action, alleging title, as in the instant case, and if the answer admits the title, but joins issue upon the location of the dividing line only, the trial is conducted, then, in all practical aspects, in the same manner as in processioning proceedings in term time.
In Jackson v. Williams, 152 N. C., 203, the Court intimates that a technical motion for an involuntary nonsuit is not applicable to such a trial, when the only issue is as to the location of the dividing line. "Without deciding whether a motion for an involuntary nonsuit in these cases will lie, we suggest that the better practice is to submit the issue to the jury, if any pertinent evidence is offered, but if the plaintiff offers no evidence, whatever, a verdict could be directed properly in favor of the defendant.
It is apparent that, in the old common-law proceeding, under the writ of perambulation, the line would be located because the jury, with the sheriff, went upon the premises and located it from such evidence, as appealed to their own senses. A failure to come to a decision was never expected, a determinative result was a practical certainty.
Inasmuch as this case goes back for a new trial, we suggest that the issue be framed as follows: “Is the dividing line between the plaintiff and the defendant located as the line marked on the map, as A, B, C, D, or as the line marked on the map as 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14?”
For the errors in the charge, as pointed out herein, we are constrained to hold that there must be a
New trial.