Tindall v. Willis

382 S.E.2d 778, 95 N.C. App. 374, 1989 N.C. App. LEXIS 766
CourtCourt of Appeals of North Carolina
DecidedSeptember 5, 1989
DocketNo. 883DC1251
StatusPublished
Cited by1 cases

This text of 382 S.E.2d 778 (Tindall v. Willis) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tindall v. Willis, 382 S.E.2d 778, 95 N.C. App. 374, 1989 N.C. App. LEXIS 766 (N.C. Ct. App. 1989).

Opinion

JOHNSON, Judge.

Plaintiffs in the present action are successors in interest to certain real property whose conveyance is recorded in Book 466, Page 70, Carteret County Registry. Their predecessors in interest, as well as defendants’ predecessors in interest, were involved in a similar controversy over the same tract in 1964. At that trial two issues were presented to the jury which are as follows: (1) “Are the petitioners [plaintiffs’ predecessors in interest] the owners of or entitled to the possessions of land as described in the complaint?” and (2) “Is the true dividing line between the lands of Petitioner and the lands of respondent [defendants’ predecessors in interest] the lines shown as AB on Plaintiffs’ Exhibit B?” Both questions were answered “yes” by the jury. In its judgment the court designated the boundary line as follows:

[376]*376Beginning at the center of the lane lying between the lands of the Petitioners and Irvin Davis Heirs, on the east side of the main road through the Community of Davis; thence with the centerline of the public lane or road S 56-30 E, 740 feet, more or less, to the highwater mark of the waters of Core Sound.

On 21 May 1975 respondent in the first action (defendants’ predecessor in interest) filed a motion to vacate the 1966 judgment. Before the motion was heard, respondent died and his widow (a defendant in the present action) was substituted as a party as administratrix of her husband’s estate. On 8 March 1979, an order was entered denying respondent’s request.

In 1982, petitioners’ heirs conveyed the parcel of property which lies at the heart of the dispute to the plaintiffs. They installed a bulkhead on their property and then attempted to sell it. Defendant in the case sub judice, Norma Willis, then informed plaintiffs’ real estate agent that she owned the property plaintiffs were attempting to sell. Defendants then continued to go upon the property and plaintiffs then filed suit.

At the trial of this matter, the surveyor, James L. Powell, testified that he had surveyed this property in 1975 and that he surveyed the center of the road as designated in the 1964 judgment. He testified to the following:

Q. Now, sir, in surveying this property, how did you use the map that you have which is before you in the Court file, sir?
A. It’s along with the judgment. The judgment — you don’t want me to read — the best of my knowledge, described the line on this map, and the judgment defines the beginning point as the center of the road between the property of Ervin Davis and Ross Davis. Those two properties were pointed out to me and the road was shown to me.

The trial court made the following pertinent findings of fact in its 2 June 1988 judgment:

4. That judgment was entered in said cause on the 5th day of March, 1966 by the Honorable Joseph W. Parker, Judge of the Superior Court presiding, which Judge decreed the true boundary line between the lands of the Petitioner and the lands of the Respondent, as defined in accordance with the line AB on Plaintiffs’ exhibit B as filed in said cause . . . [377]*3776. That the beginning corner of the old road as shown on the Powell map was established correctly by Powell, but as to whether or not said line as shown on the Powell map is down the center of the existing road is difficult for the Court to determine; however, the Court is satisfied that the line is substantially correct. However, the court cannot determine the exact line of the boundary line, since the Superior Court did not run and mark the boundary line in accordance with North Carolina General Statutes sec. 38-3(c) in 75-CVS-215.
7. The Court further finds as a fact that the actual location of the center of the road is not necessary for this Court to determine that there has been actual trespass by the Defendants, since they have all testified that they have gone on the property of the Plaintiffs in an area that would be substantially north of said road, regardless of where the exact center would be.
8. That the Court finds that the boundary line is located substantially as the plaintiff herein contends, (the boundary line as established by Powell Surveying) however, the Court is without jurisdiction to place the boundary line upon the ground. Only the Superior Court has jurisdiction to run and mark the boundary line in accordance with North Carolina General Statute sec. 38-3.
11. That the judgment rendered in 75-CVS-215 constitutes res judicata as to the boundary between the parties hereto, as respective successors in interest to the parties in the Superior Court proceeding.
13. That the Plaintiffs’ predecessors in title, and especially Sterling Dixon, exercised control over the property in question for many years, using it for the operation of a store, building docks and landing area, in which he ferried automobiles, hunting and fishing partys [sic] to Core Banks.
14. That the claim of use by the Defendants was not to the exclusion of the Plaintiffs, since as shown on the aerial photographs, Plaintiffs’ predecessors in title have built structures, operated a business, parked cars, had ramps and loading facilities, all located on this property, and used by them.

[378]*378Based upon these findings of fact the trial court concluded that the 1966 judgment was res judicata as to the location of the boundary line between the parties’ properties and that they were bound by it. In addition, the court concluded that defendants were liable for trespass and ordered the payment of nominal damages. From this judgment, defendants appeal.

On appeal, defendants present two questions for this Court’s review, to wit: (1) whether the trial court erred in concluding that the 1966 judgment was res judicata on the question of the boundary line’s location, and (2) whether the court’s judgment was erroneous because the prior adjudicated boundary line was mislocated in that its description did not fit plaintiffs’ deed description, plaintiffs failed to show proof of title, and the findings of fact and conclusions of law did not support the judgment.

We note at the outset that defendants have failed to comply with the mandatory rules of appellate procedure. Rule 28(b)(5) of the N. C. Rules of Appellate Procedure provides in pertinent part that appellant’s brief shall have “[a]n argument, to contain the contentions of the appellant with respect to each question presented. . . . The body of the argument shall contain citation of the authorities upon which the appellant relies.”

Our study of defendants’ second question for review reveals no citations of any authorities upon which they rely. Therefore, we decline to review this question and consider only assignment of error one.

By this question defendants specifically contend that the 1966 judgment upon which the trial court relied to reestablish the boundary line cannot be res judicata because it was patently incomplete and ineffective. We disagree.

Defendants rely upon Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964), to support their argument that the court’s failure to order compliance with G.S. sec.

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387 S.E.2d 235 (Court of Appeals of North Carolina, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
382 S.E.2d 778, 95 N.C. App. 374, 1989 N.C. App. LEXIS 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tindall-v-willis-ncctapp-1989.