Lance v. Cogdill

YaleNtiNE, J. This action was instituted before tbe clerk as a processioning proceeding under G.S. Chapter 38 to fix and determine tbe true boundary line between tbe lands of plaintiffs and tbe lands of defendants. Upon tbe filing of answers by defendants tbe clerk, acting upon tbe assumption tbat tbe answers converted tbe proceeding into an action to try title to real property, transferred tbe cause to tbe civil issue docket for trial of tbe issues raised. But tbe premature transfer did not deprive tbe Superior Court of jurisdiction to try tbe cause at term before a jury. Woody v. Barnett, 235 N.C. 13. When tbe answers filed by tbe defendants are correctly analyzed, it becomes apparent they do not change tbe essential nature of tbe proceeding. Tbe action is now, as in tbe beginning, a processioning proceeding. Tbe defendants admit tbat tbe plaintiffs are tbe owners of tbe land described in tbe pleading lying on tbe northwest side of Kimsey Creek and assert tbat tbe true boundary line, under tbe record title of tbe parties, is tbe run or meanders of said creek. They further assert tbat if this is not true, then tbe run of said creek has become tbe true line by operation of law by virtue of tbe fact they have been in tbe open, notorious and adverse possession of all of tbe adjoining lands lying on tbe southeast side of tbe creek up to tbe run thereof for tbe statutory periods necessary to vest them with title and fix tbe run of tbe creek as tbe present boundary line. Appreciation of this fact materially simplifies tbe questions raised for decision on this appeal. What is tbe true dividing line between two contiguous tracts of land is a question of law for tbe court. Where tbat line, as determined by tbe court, is actually located on tbe premises in controversy is an issue of fact for tbe jury. It is tbe province of tbe court to declare tbe first and tbat of tbe jury to ascertain tbe second. Greer v. Hayes, 216 N.C. 396, 5 S.E. *136 2d 169; Huffman v. Pearson, 222 N.C. 193, 22 S.E. 2d 440; McCanless v. Ballard, 222 N.C. 701, 24 S.E. 2d 525; Cornelison v. Hammond, 225 N.C. 535, 35 S.E. 2d 633. So, then, what is the true dividing line between the two contiguous tracts of land owned by plaintiffs and defendants ? The deeds in the chain of title relied on by plaintiffs contain the call, “Beginning in the meanders of Kimsey Creek in line of M. J. Lance and corners with Westfeldt and runs South 45 degrees West with the meanders of said creek 125 poles to the Westfeldt line.” While the exact wording of the call may vary in the several deeds, the call is the same, “South 45 degrees West with the meanders of said creek 125 poles.” This is the line at issue. Its termini are admitted. If the line is run according to the call and distance, it embraces within the deeds of plaintiffs lands lying on the southeast of the creek claimed by defendants. If the meanders of the creek are followed from one terminus to the other, the creek is, of course, the true dividing line. The real controversy is as to which call is controlling. Whenever natural objects, such as rivers, creeks, rocks and the like, are distinctly called for and satisfactorily proved, they become landmarks, to which preference must be given because the certainty which they afford excludes the possibility of mistake. It follows that in case of a conflict, a call for courses and distances must always yield to one for a natural object. The course and distance controls only in the event the natural object cannot be located. Cherry v. Slade, 7 N.C. 82; Brown v. Hodges, 233 N.C. 617, 65 S.E. 2d 144, and cases cited. There is abundant evidence in the record that Kimsey Creek has not altered its course; that the channel thereof is now the same as it has been for the past 50 or 60 years. While the issue in respect thereto submitted to the jury is not in the form best adapted to a processioning proceeding (Creer v. Hayes, supraj McCanless v. Ballard, supra), the answer thereto, when interpreted in the light of the evidence and the charge of the court, constitutes a finding in effect that the “meanders” of the creek between the two admitted corners has not changed and is the true boundary line between the lands of the plaintiffs and the lands of the defendants. We, therefore, deem the verdict sufficient to support the judgment. In this connection we note that the plaintiffs or their predecessors in title in prior actions alleged that said stream was and is the true dividing line. Whether the judgments entered in those actions are res judicata as contended by defendants we need not now decide, for in any event the judgment in this action puts an end to the controversy. When a deed is duly probated and recorded as required by law, the public record thereof is admissible in evidence and raises a rebuttable presumption that the original was duly executed and delivered. Land Bank v. Griffin, 207 N.C. 265, 176 S.E. 555; Cannon v. Blair, 229 N.C. *137 606, 50 S.E. 2d 732; Stansbury, Evidence, 229. Ordinarily, in actions involving title to real property tbe instrument as recorded in tbe public registry, unless assailed by tbe party against wbom it is offered, is accepted as due proof of its genuineness. Even so, here tbe court in respect to tbe several deeds offered in evidence by plaintiffs charged tbe jury tbat while tbe record of a deed constitutes -prima facie evidence tbat tbe original deed was actually executed and delivered in words and figures as tbe record of such deed tends to show, tbe burden rested on plaintiffs to prove tbat tbe several original deeds constituting plaintiffs’ alleged chain of title were actually executed and delivered. It may well be, as contended by plaintiffs, tbat tbe repetitious statement of this principle left tbe jury under tbe impression tbat tbe records alone were not sufficient, but tbat plaintiffs were required to go forward and offer additional evidence of tbe execution and delivery of tbe originals. Even so, we do not perceive tbat this constitutes any substantial error. Plaintiffs’ title was admitted. Tbe charge of tbe court in respect to tbe stream as tbe line was clear and to tbe point. Tbe jury in a trial free of substantial error on tbe determinative question has resolved tbe conflicting evidence in favor of tbe defendants. Its verdict is fully sustained by tbe record. Therefore, tbe judgment entered must be affirmed. No error.