Mann v. . Archbell

Adams, J. The clerk’s appointment of the surveyor, with instructions to make a report of his proceeding, was dated 12 November, 1920; the survey was made 25 June, 1922; the report was filed 29 September, 1922. On the day the report was returned, the defendants entered of record written exceptions thereto, on the ground that the line as run by the surveyor was improperly located, and the clerk transferred the case to the civil docket for trial by a jury. The plaintiff argues here that the cause was not properly constituted in the Superior Court; that the clerk defined the true boundary line; and as the defendant did not appeal from his order, the one question is whether the surveyor obeyed the instruction. To this argument we are unable to. assent. The statute provides that the owner shall file his petition, under oath, stating therein facts sufficient to constitute the location of the line as *74 claimed by bim; . . . and if the defendants fail to answer, judgment shall be given establishing the line according to the petition; but if the answer deny the location as set out in the petition, the clerk shall issue an order to the county surveyor ... to survey said line, or lines, according to the contention of both parties, and make a report of the same, with a map, . . . and the cause shall then be heard by the clerk upon the location of said line, or lines, and judgment given determining the location thereof. The plaintiff contends that the beginning corner of the disputed boundary is at a white oak situated 28 feet from the center of the branch, and that the true location of the line is represented on the plat by A B C;.and the defendants contend that the beginning is at a white oak which formerly stood in the branch, the location of the line being as represented by D E C. On the trial there was evidence in support of each contention. The complaint describes the disputed boundary, but contains no definite allegation as to the location of the' white oak or the line. The answer admits the description, and alleges that if the line is properly located it will be found that the acts of which the plaintiff complains were committed by the defendants on their own land. So the question of location was -not definitely presented until the defendants filed their exceptions to the surveyor’s report. Whether the clerk should have heard the exceptions and determined the location, we need not now consider; for, after the cause was transferred to the civil docket, the Superior Court had jurisdiction to hear and determine all matters in controversy. C. S., sec. 637; Roseman v. Roseman, 127 N. C., 497; Wooten v. Cunningham, 171 N. C., 123; Ryder v. Oates, 173 N. C., 569; In re Stone, 176 N. C., 337. His Honor properly declined to submit the issue tendered by the plaintiff. The clerk directed the running and marking of the line, but not its location. Moreover, a categorical answer to this issue would not have determined the controversy. The issue submitted enabled the parties to present the various phases of the evidence relating to the location, and the plaintiff on this score has no just cause of complaint. Issues are sufficient when they present to the jury proper inquiries as to all the essential matters or determinative facts in dispute. Power Co. v. Power Co., 171 N. C., 248; Carr v. Alexander, 169 N. C., 665; Roberts v. Baldwin, 155 N. C., 276. The instruction as to the burden of proof was free from error. The plaintiff claimed the true location of the dividing line to be as represented on the plat by the letters ABC, and it was incumbent upon him to establish his contention by the greater weight of the evidence. Tillot- *75 son v. Fulp, 172 N. C., 500; Garris v. Harrington, 167 N. C., 86; Woody v. Fountain, 143 N. C., 66. Of course, tbe location of tbe line was peculiarly a question for tbe jury. As none of tbe exceptions can be sustained, tbe judgment is Affirmed.