Andrews v. Davenport

353 S.E.2d 671 (1987)

Felix Dixon ANDREWS, Edna Andrews Rowe, Leo Green and wife, Elizabeth H. Green v. Robert H. DAVENPORT and wife, Louise S. Davenport, Weyerhaeuser Company, Allen Goodson, Marvin L. Goodson Company and Bobby Goodson.

No. 864SC400.

Court of Appeals of North Carolina.

March 17, 1987.

*672 Henderson, Baxter & Alford by David S. Henderson, New Bern, for plaintiff-appellants.

Allen, Hooten & Hodges by John M. Martin, Kinston, for defendant-appellees Robert H. Davenport and Louise S. Davenport.

T.R. Thompson, Jr., Aurora, for defendant-appellees Weyerhaeuser Co., Allen Goodson, Marvin L. Goodson Co. and Bobby Goodson.

PHILLIPS, Judge.

The order of summary judgment dismissing plaintiffs' action is not well founded and we vacate it. Before summary judgment is proper the lack of a triable issue of fact must be clearly demonstrated, Pitts v. Village Inn Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978), and that has not been done in this case. The evidence before the court does not establish any of the following, any one of which would be fatal *673 to plaintiffs' case: That plaintiffs do not own the land in question; that defendants Davenport had a right to deed the timber on it; that the timber on the land was not cut; or that the action is barred by the statute of limitations or by any other legal impediment. The evidence before the court rather tends to show that plaintiffs own the land involvedeither by grant, inheritance, or adverse possessionand that the defendant Weyerhaeuser damaged plaintiffs by cutting and removing the timber without authority. The order was apparently entered in the mistaken belief that the evidence establishes that plaintiffs cannot locate the lands described in the complaint on the ground, which is not the case. Furthermore, while locating land described in a deed may be necessary in proving title to disputed land at trial, Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786 (1955), such a showing was not required of plaintiffs at the hearing on defendants' motion for summary judgment because defendants made no showing to the contrary. In a hearing on a defendant's motion for summary judgment, unlike at trial, a plaintiff only has the burden to rebut any showing the defendant makes which indicates that his case is fatally deficient. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). In this case defendants presented no proof that plaintiffs were obliged to rebut. They did not prove or even attempt to prove either that they or others own the land or that plaintiffs do not; nor did they show by any clear or positive evidence either that plaintiffs cannot locate the land described in the deeds on the ground or that it is situated within the boundaries of defendants' land. Indeed, the only defendant to testify, Robert H. Davenport, stated he did not know whether he owned the land in dispute or not. All that the defendants did do in an effort to disprove plaintiffs' claim was elicit snatches of testimony from plaintiff Andrews and his surveyor, which were contradicted or explained elsewhere, to the effect that they did not find certain boundary markers described in the complaint. But the testimony excerpts relied upon by defendants are directly refuted by testimony to the contrary; plaintiffs' surveyor categorically testified that he had located the property on the ground, and plaintiff Felix Dixon Andrews testified that he once knew the boundaries of the land and could readily locate them until the defendant Weyerhaeuser bulldozed over the embedded markers of one boundary line and cut down a line of blazed trees that marked another. The evidence that defendants rely upon merely casts doubt on plaintiffs' ability to locate the described lands on the ground, it does not clearly establish that they cannot do so. Thus, all genuine issues of material fact have not been eliminated from the case; and the factual issues that exist are for a jury, rather than the court, to decide. Zimmerman v. Hogg and Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). For that matter the location of land boundaries is usually "a factual question for the jury," Cutts v. Casey, 271 N.C. 165, 168, 155 S.E.2d 519, 521 (1967); because deed and survey measurements and descriptions, made by different people at different times under different conditions, often vary and it is a rare case indeed when only one deduction can be made from them.

Vacated and remanded.

PARKER and COZORT, JJ., concur.