Lowder v. . Smith

ClaRksoN, J. We do not think that the exceptions and assignments of error made by plaintiff can be sustained. We do not think, from the facts appearing of record, that plaintiff was entitled to a jury trial. Defendant contends that “In March, 1913, Charlie Harward, the arbitrator selected by Lindsay Lowder, the ancestor of the plaintiff, and by George E. Smith, together with the chain carriers, selected and paid by each, went upon the ground in the presence of the parties and took all the papers of each of the parties, and determined, surveyed and *647 fixed and marked plainly tbe dividing line in the presence of all the parties, and the same was recognized by Lindsay Lowder and the plaintiff, who claims under his father, Lindsay Lowder, and by this defendant, for 16 years.” Ve think the record sustains defendant’s contentions and the principle of estoppel applies to plaintiff. In fact, defendant could have had the petition dismissed, as there were no lines in dispute between the parties. The arbitration agreement between Lindsay Lowder, ancestor of plaintiff and through whom he claims, and defendant, is binding between the parties and estops the plaintiff as to all matters and acts done under this agreement. Wright v. Fertilizer Co., 193 N. C., 305; Winstead v. Farmer, 193 N. C., 405. C. S., 361, is as follows: “The owner of land, any of whose boundary lines are in dispute, may establish any of such lines by special proceedings in the Superior Court of the county in which the land or any part thereof is situated.” The judgment of the court below set forth the facts fully and we think on the whole record, if there was error, it was not such prejudicial or reversible error as would entitle plaintiff to a new trial. From the whole record we think plaintiff was estopped to bring this petition as under the statute it can only be brought when the “boundary lines are in dispute.” All the evidence was to the effect that plaintiff’s father and predecessor in title to the land, had a settlement of this disputed line or lines between himself and defendant. The lines as settled Avere recognized in the division of plaintiff’s father’s land among the heirs-at-law, plaintiff being one of them and in the division, Lot 8 was allotted to him. The line was not in dispute. Wood v. Hughes, 195 N. C., 185. This is not an action in which title is involved. It is a laudable statutory method to settle differences among neighbors concerning their boundary lines which are in dispute. We can find on the record no denial by plaintiff in the pleading of the agreement between plaintiff’s father and predecessor in title and defendant, which defendant sets up in his answer. See C. S., 525, 543; Simon v. Masters, 192 N. C., 731. In the judgment of the court below is the following: “It being admitted that the agreement ivas executed — and it appearing from an examination of the surveyor that he established and located the line.” Plaintiff contends that in Tucker v. Satterthwaite, 120 N. C., at p. 122-3 (and numerous cases) it is held: “What we now say is, that section 395 of the Code (C. S., 580), is mandatory, binding equally upon the court and upon counsel; that it is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising in the pleadings, and that in the absence of such issues, or admissions of record *648 equivalent thereto, sufficient to reasonably justify, directly or by clear implication, the judgment rendered therein, this Court will remand the ease for a new trial.” It may be noted that the decision says “and that in the absence of such issues or admissions of record equivalent thereto,” etc. “Admissions implied under the section (C. S., 543, supra) by failure to controvert allegations of the opposite pleading constitute evidence against the party making them in all actions and proceedings against him, wherein they may be pertinent and competent, just as are admissions and declarations of a party made adverse to his right on any occasion. Their weight depends always upon whether or not they were made with deliberation or incautiously, and they are subject to proper explanation.” N. C. Code, 1931 (Michie), under O. S., 543, p. 216, and cases cited. ~We think there was sufficient evidence, undisputed, to sustain the judgment of the court below as to the estoppel. Walker v. Walker, ante, 183. Then again, in Booth v. Hairston, 193 N. C., at p. 281, we find: “Our system of appeals is founded on public policy and appellate courts will not encourage litigation by granting a new trial which could not benefit the litigant and the result changed upon a new trial, and the non-granting was not prejudicial to his rights. Bateman v. Lumber Co., 154 N. C., p. 253; Rierson v. Iron Co., 184 N. C., p. 363; Davis v. Storage Co., 186 N. C., 676. They will only interfere therefore, where there is a prospect of ultimate benefit.’ Cauble v. Express Co., 182 N. C., p. 451.” On the facts and circumstances of this case, and for the reasons given, the judgment is Affirmed.