Green v. . Williams

Walker, J., after-stating the case: It is suggested in the brief of the defendant’s counsel that the Court held the petition insufficient to sustain the proceeding as one for processioning the land, and tried the case as an action of ejectment. We think this view of the matter was erroneous, as the petition states facts sufficient to> entitle the petitioner to proceed under secs. 325 and 326 of the Revisal (Acts of 1893, ch. 22). The petition and the answer clearly show that there is a real and, indeed, ,a serious dispute between the parties as to the true location of their dividing line. We are also of the opinion, without reviewing the facts *63 in the case, that there was sufficient evidence to carry the case to the jury. Where there is to be another trial, it is (better not to discuss the merits of the case or to comment ■upon the testimony further than is necessary to decide that there is some evidence for the consideration of the jury. The testimony of the surveyor, A. Cheney, .and of the witness Brown, who is also a surveyor, was of such a character that the jury might reasonably decide therefrom as to the position of the true line dividing the one lot from the other. Whether the witnesses started at the right corner and accurately measured the intervening street lines and city lots, and whether in other respects they proceeded correctly, are questions for the jury to pass, upon, under instructions from the Court, the burden being upon the plaintiff. Hill v. Dalton, 136 N. C., 339. The entire case is now constituted in the Superior Court by the defendant’s appeal, and all controverted matters can be there tried and determined. We forbear to reopen the question as to the method of procedure in such cases, for that matter has recently undergone exhaustive discussion, and the practice, we think, has been settled. Parker v. Taylor, 133 N. C., 103; Hill v. Dalton, 136 N. C., 339 (s. c., 140 N. C., 9) ; Smith v. Johnson, 137 N. C., 43; Stanaland v. Rabon, 140 N. C., 204; Davis v. Wall, 142 N. C., 450; and Woody v. Fountain (at the last term). Our processioning act is similar in some respects to> the “writ of perambulation” at common law, which is sued by consent of both parties, when they are in doubt as to the bounds of their respective estates, and is directed to the Sheriff, who is commanded to make the “perambulation” with a jury, and to set the bounds and limits between them in certainty. Fitz Nat. Brev., 133. There it was done by consent of the parties, and when there was no dispute as *64 to tbe title, and none as to tbe right to occupy tbe adjoining tenements, while with us, either of the adjoining proprietors, where a dispute as to the true dividing boundary has arisen, is entitled to have the land processioned, without the other’s consent, and even when the question of title may become incidentally involved, and then all controverted matters, where there has been an appeal, are settled by the jury under the guidance of the Court. There was error in the ruling of the Court, for which a new trial is ordered. New Trial.