Jenkins v. Trantham

94 S.E.2d 311 (1956)

244 N.C. 422

Roy JENKINS and wife, Martha L. Jenkins, and C. M. Sales, v. Tom O. TRANTHAM and wife, Zelda Trantham, Roscoe Harwood and wife, Cora Harwood.

No. 98.

Supreme Court of North Carolina.

September 19, 1956.

*314 W. M. Styles and Oscar Stanton, Asheville, for petitioners, appellants.

Don C. Young, Asheville, for respondents Tom O. Trantham and wife, Zelda Trantham, appellees.

No appearance for Roscoe Harwood and wife, Cora Harwood, respondents.

PARKER, Justice.

A study of the petition and the amendment thereto shows plainly the legal effect of petitioners' pleadings. In their petition they allege with particularity what are the true boundary lines between their lands and the lands of the respondents, and contend that the location of these true boundary lines is shown by the line marked A, H and B on Reagan's map. In the amendment to their petition they assert in effect that, if this is not true, then the fence shown on Reagan's map has become the true line by operation of law by virtue of their 20 years adverse possession under G.S. § 1-40 of that part of the lands in dispute lying West of the fence, which adverse possession has vested them with title and fixed the fence as the present true boundary line. Lance v. Cogdill, 236 N.C. 134, 71 S.E.2d 918.

The fence shown on Reagan's map is West of the boundary lines as contended for by petitioners, and part of it is on the East side of the boundary lines and part of it on the West side of the boundary lines as contended by respondents.

The petitioners have the burden of proof of showing the true location of their boundary lines. McCanless v. Ballard, 222 N.C. 701, 24 S.E.2d 525.

What constitutes the lines is a matter of law for the court: where those lines *315 are actually located on the premises in controversy is an issue of fact peculiarly for the jury. McCanless v. Ballard, supra; Geddie v. Williams, 189 N.C. 333, 127 S.E. 423; Tatem v. Paine, 11 N.C. 64.

Issues of fact to be submitted to the jury must arise upon the pleadings. G.S. §§ 1-196, 1-198; McCullen v. Durham, 229 N.C. 418, 426, 50 S.E.2d 511.

By permission of the Clerk petitioners filed an amendment to their petition setting up title to that part of the lands in dispute lying West of the fence, as shown on Reagan's map, by reason of 20 years adverse possession under G.S. § 1-40. The respondents deny the allegations of the amendment to the petition. Thus an issue of fact arises on the pleadings, and petitioners can use adverse possession to prove title to that part of the lands in dispute lying West of the fence. Geddie v. Williams, supra, at pages 338 and 339 in 189 N.C., and at page 425 in 127 S.E.

It may be that petitioners cannot sustain the burden of proof of establishing their boundary lines as alleged in their petition, but that they may successfully show title in them to that part of the lands in dispute lying West of the fence by adverse possession for 20 years under G.S. § 1-40, and thus fix their boundary lines at the fence. When all the evidence has been introduced at the trial, the court can submit to the jury the appropriate issues arising upon the pleadings and the evidence. Greer v. Hayes, 221 N.C. 141, 19 S.E.2d 232.

Petitioners are not seeking two remedies which are inconsistent or repugnant to each other. Irvin v. Harris, 182 N.C. 647, 109 S.E. 867. Petitioners are seeking coexisting and consistent remedies, and the principle of election does not apply. Standard Sewing Machine Co. v. Owings, 140 N.C. 503, 53 S.E. 345, 8 L.R.A.,N.S., 582.

"The plaintiff can unite two causes of action relating to the same transaction and have alternative relief". Herring v. Lumber Co., 159 N.C. 382, 74 S.E. 1011, 1013, 42 L.R.A.,N.S., 488.

The law in this jurisdiction will not compel petitioners to elect at their peril as to whether they contend their true boundary lines are shown by the line on Reagan's map marked by the letters A, H and B, as alleged in their petition, or whether they contend their true boundary lines are shown by the fence on Reagan's map by reason of title having vested in them to the land in dispute up to the fence by virtue of 20 years adverse possession under G.S. § 1-40. They may assert both contentions leaving it to the court and jury to say which line, if either, they have carried the burden of establishing. Jenkins v. Duckworth & Shelton, Inc., 242 N.C. 758, 89 S.E.2d 471. The court committed prejudicial error in compelling petitioners to make an election as to which line they contended was the true boundary line.

Is the appeal fragmentary and premature, and should it be dismissed, as contended by respondents? An appeal may be taken to this Court "from every judicial order or determination of a judge of a superior court * * * which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial." G.S. § 1-277. Except where the statute otherwise expressly provides, as a general rule an appeal to the Supreme Court only lies from a final judgment of the Superior Court. Veazey v. City of Durham, 231 N.C. 354, 57 S.E.2d 375; Privette v. Privette, 230 N.C. 52, 51 S.E.2d 925. An appeal does not lie to the Supreme Court from an interlocutory order of the Superior Court unless such order affects some substantial right claimed in the action by the appellant and will work an injury to him if not corrected before an appeal from the final judgment. Veazey v. Durham, supra; Privette v. Privette, supra; *316 Parrish v. Atlantic Coast Line R. Co., 221 N.C. 292, 20 S.E.2d 299; Cole v. Farmers Bank & Trust Co., 221 N.C. 249, 20 S.E.2d 54. The order requiring the petitioners to make an election affects substantial rights claimed by them, and will work injury to them in presenting their case to the jury if not corrected before an appeal from the final judgment.

The order below is

Reversed.

JOHNSON, J., not sitting.