Garris v. . Harrington

AlleN, J. The plaintiff became the actor, and assumed the burden of proof to establish the true line between him and the defendant, when he instituted the proceeding (Hill v. Dalton, 140 N. C., 9), and this burden of proof did not shift to the defendant because, in addition to denying the line to be as claimed by the plaintiff, he alleged another to be the dividing line. The precise question was considered and decided in Woody v. Fountain, 143 N. C., 66. In that case, which was a proceeding to establish a dividing line, the plaintiff alleged the true line to be at a certain place. This was denied by the defendant, and he alleged the true line to be at another place. The issue submitted to the jury was like the one in the record before us, and it was held to be error to charge the jury that “If they should find from the greater weight of the evidence in this case that the original and true line between the plaintiff and defendant is as claimed by defendant, then you will answer this issue (as to boundary) in his favor,” the Court saying of this instruction: “This was, in effect, telling the jury that the issue could not be answered in the defendant’s favor unless they found the greater weight on his side: The burden of proof is on the plaintiff to establish the line contended for by her. Hill v. Dalton, 136 N. C., 339; s. c., 140 N. C., 9.” The charge given cannot be distinguished from the one declared to be erroneous, and there must therefore be a New trial.