Stanaland v. Rabon.

Walker, J., after stating the case: It seems to us that the *204 question presented in this appeal is fully covered by the recent decision in Smith v. Johnson, 137 N. C., 43, and that case conclusively determines the matter herein involved against the contention of the defendant. The Act of 1893, chap. 22, was evidently intended to simplify the procedure in processioning cases and to afford a speedy and effective method of determining the true location of disputed lines and boundaries of lands as between their proprietors instead of requiring them to resort to the cumbersome, and sometimes intricate and costly remedy by suit to try the title, formerly an action of ejectment. Whether the Legislature has succeeded, as yet, in accomplishing this commendable purpose, is a question which naturally addresses itself to the consideration of that honorable body. But however that may be, it cannot be doubted that if, upon a mere denial of ownership or occupation, a defendant is entitled to have the proceeding dismissed, the whole object in passing the act may be utterly defeated. . If the plaintiff alleges in his petition such facts as bring his case within the provisions of the act and these essential, or material allegations are denied, the issues thus raised should be transferred to the Superior Court for trial, just as is done in other cases of special proceedings. The act in terms requires this to be done. The issues thus raised are to be tried and the cause further proceeded in according to the manner pointed out in Smith v. Johnson, supra. That case had not been reported, perhaps, at the time of the trial of this cause in the court below, and we presume was not brought to the attention of the court. It is closely anala-gous to our ease and indeed is substantially the same kind of case in its facts and in the principles involved. It must therefore govern our decision in the matter presented in this record. His Honor erred in dismissing the case. The judgment will be set aside and further proceedings will be had in accordance with the law and the course and practice of the court as herein indicated. Error.