McCanless v. . Ballard

24 S.E.2d 525, 222 N.C. 701, 1943 N.C. LEXIS 406

• Court: Supreme Court of North Carolina
• Decided: March 17, 1943
• Status: Published

Opinion

Stacy, C. J.

In a processioning proceeding under C. S., 361-364, to establish the boundary line between adjoining landowners, which is applicable only in case of a dispute as to its true location, Wood v. Hughes, 195 N. C., 185, 141 S. E., 569, the plaintiff is the actor and has the burden of establishing the true location of the dividing line. Garris v. Harrington, 167 N. C., 86, 83 S. E., 253; Hill v. Dalton, 140 N. C., 9, 52 S. E., 425; Woody v. Fountain, 143 N. C., 66, 55 S. E., 425.

Here the court properly instructed the jury that the plaintiffs had the laboring oar in establishing the true dividing line, but in the absence of an agreement that the line was at either the one or the other of the two locations, i.e., the “Bed Line” or the “Blue Line,” as was the case in Boone v. Collins, 202 N. C., 12, 161 S. E., 543, a negative answer to the first issue would not perforce result in an affirmative answer to the second issue, as the court apparently assumed in its charge to the jury. Marsh v. Richardson, 106 N. C., 539, 11 S. E., 522. The location of the line was peculiarly for the jury. Mann v. Archbell, 186 N. C., 72, 118 S. E., 911; Rhodes v. Ange, 173 N. C., 25, 91 S. E., 356.

Some confusion may have arisen from the fact that two issues were submitted instead of one. In Greer v. Hayes, 216 N. C., 396, 5 S. E. (2d), 169, it was suggested that simplicity might be served if a single issue were submitted substantially as follows: "Where is the true location of the dividing line between the lands of the plaintiffs and those of the defendants? See, also, Huffman v. Pearson, ante, 193. What constitutes the line, is a matter of law; where it is, is a matter of fact. Geddie v. Williams, 189 N. C., 333, 127 S. E., 423. It is the province of the court to declare the one; that of the jury to ascertain the other. Tatem v. Paine, 11 N. C., 64; Miller v. Johnston, 173 N. C., 62, 91 S. E., 593; Von Herff v. Richardson, 192 N. C., 595, 135 S. E., 533.

There is also a contention on the part of the defendants that the plaintiffs’ land as described in the deed under which they claim falls short by 13 poles of reaching the land of the defendants which necessarily defeats the proceeding, as processioning is appropriate only in case of a disputed boundary between adjoining landowners. The jury was instructed that if the land described in the deed under which the plaintiffs claim, “does not join the land of the defendants, but lies away from it, then the plaintiffs would not be entitled to recover.” Thus, it will be seen, if this were the basis of the jury’s answer to the first issue, the whole ease must go out as the plaintiffs and defendants under such finding would not be adjoining landowners, and the answer to the second issue would likewise go for naught. The record fails to disclose upon what theory the jury returned its verdict.

A new trial appears necessary. ' It is so ordered.

New trial.