Welborn v. Bate Lumber Co.

77 S.E.2d 612 (1953)

238 N.C. 238

WELBORN et ux. v. BATE LUMBER CO.

No. 29.

Supreme Court of North Carolina.

September 23, 1953.

*613 Rodman & Rodman, Washington, for plaintiff appellants.

McMullan & McMullan and John A. Wilkinson, Washington, for defendant appellee.

BARNHILL, Justice.

Title to real property is not at issue in this action. Plaintiffs and defendant admit the parties own the respective tracts claimed by them. The two tracts are contiguous and the northern boundary of the drainage district is the true dividing line. The exact location of this line is the question at issue. Realizing this, the parties entered into certain stipulations quoted in the statement of fact. These stipulations converted the trial in the court below into a processioning proceeding. Goodwin v. Greene, 237 N.C. 244, 74 S.E.2d 630. Thereafter, the action was not subject to dismissal as in case of nonsuit. Cornelison v. Hammond, 225 N.C. 535, 35 S.E.2d 633; Plemmons v. Cutshall, 230 N.C. 595, 55 S.E.2d 74.

In any event, there is evidence in the record tending to locate the true dividing line as contended by the plaintiffs. At the time the unity of title was severed by the Branch heirs and that part of the original tract which is now owned by defendant was conveyed to Cassell, the canals had been cut. The head of Canal No. 3 was an ascertainable point then in existence. And on this question the engineer who made the preliminary survey testified: "When the District was established, I was familiar with its boundaries and the canals to be cut. I was likewise familiar with the plans and specifications for the canals. The canals in that District were all cut in accordance with the plans and specifications and orders of the Court."

There is other evidence in the record tending to establish the head of Canal No. 3 at a point in the northern boundary of the district and as the terminus of the line in controversy.

"It is settled law in this State that, in processioning proceedings to establish a boundary line, which is in dispute, what constitutes a dividing line is a question of law for the court, but a controversy as to where the line is must be settled by the jury under correct instructions based upon competent evidence. (Citing cases.)" Winborne, J., in Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440, 444.

Therefore, on this record, it was the duty of the court to submit an issue similar *614 in form to the one suggested in Greer v. Hayes, 216 N.C. 396, 5 S.E.2d 169, Huffman v. Pearson, supra, and Goodwin v. Greene, supra, except that it should read "where" rather than "what" is the true dividing line, etc. It should then have instructed the jury what, under the law and the evidence in the case, constitutes such boundary or dividing line.

That the evidence may be such as to warrant a peremptory instruction on the issue does not alter the rule that requires a jury to say, under proper instructions, where the line is actually located or justify a dismissal of the action. In an action in rem a judgment of nonsuit settles nothing. And plaintiffs are entitled to judgment judicially locating and fixing the true dividing line even if it is finally located as contended by defendant. Only in this manner may it be determined whether defendant has committed a trespass on the land of plaintiffs.

The judgment entered in the court below is.

Reversed.