Nash v. . Shute

Hoke, J. In Coltrane v. Laughlin, 157 N. C., 282, it was held, in effect, that “when a court having jurisdiction of the cause and the parties enters judgment therein purporting to determine the controversy, the judgment will estop the parties and their privies as to all issuable matters directly presented by the pleadings, and though not issuable in the technical sense, it will conclude, among other things, as to all matters within the scope of the pleadings, which are material and relevant and were in fact investigated and determined.” And this statement of the principle is in accord with numerous decisions where the subject has been directly considered. Holloway v. Durham, 176 N. C., 550; Propst v. Caldwell, 172 N. C., 594; Cropsey v. Markham, 171 N. C., 44; Gillam v. Edmondson, 154 N. C., 127; Tyler v. Capeheart, 125 N. C., 64; Jordan v. Farthing, 117 N. C., 188. The record relied upon by plaintiff as an estoppel in the present case is a proceeding before the clerk, and terminated before him, to settle the location of a disputed boundary line under the provisions of C. S., ch. 9. Proceeding under this statute, the Court is bound by its limitations and restrictions, Proctor v. Comrs., ante, 56, and the law confers on the clerk no jurisdiction to settle questions of title. He can only authoritatively determine the location of a disputed line, and very *531 properly tbis is all tbat bis judgment professes to decide. “It is ordered and decreed tbat tbe true dividing line between tbe lot of plaintiffs and tbe lot of defendant J. T. Sbute is a line commencing at tbe northwest corner of J. T. Shute’s brick opera bouse building on tbe eastern boundary of Haynes Street, and running tbence with tbe northern wall of said brick opera bouse building and with tbe old postoffice building about north 87 east 180 feet, more or less, to Beasley Street, tbe northwest corner of said J. T. Sbute’s postoffice building.” Tbe statute itself provides, in section 362: “Tbat tbe occupation of land constitutes sufficient ownership for tbe purposes of tbis chapter.” Tbe judgment of tbe clerk only undertook to determine tbe location of tbe surface line between tbe parties, and did not purport to settle tbe extent or character of tbe proprietary interests of tbe owners or claimants on either side. Not only were these matters not investigated or determined in any bearing before him, but tbe clerk, as stated, was without jurisdiction over them, and tbe parties are therefore not concluded by bis judgment in respect to them. Tbe decisions which were cited by counsel as upholding tbe claim of an estoppel by judgment were cases where, tbe issue of title being raised in tbe pleadings, tbe cause was transferred to tbe Superior Court, and under tbe statute applicable became, in effect, an action to determine tbe title, etc., tbat court having general jurisdiction could enter a judgment concluding tbe parties as to tbe questions presented by tbe pleadings. Hilliard v. Abernethy, 171 N. C., 644; Maultsby v. Braddy, 171 N. C., 300; Woody v. Fountain, 143 N. C., 66. There is nothing in Whitaker v. Garren, 167 N. C., 658, tbat militates against tbis ruling. In tbat case tbe trial judge, under several decisions construing a former statute, bad held tbat in a subsequent suit between tbe parties to try out tbe question of title, a proceeding under tbe statute before tbe clerk to settle a disputed line could be allowed no effect whatever, and could not be received in evidence. Tbe Court, in Whitaker v. Garren, supra, only held tbat under tbe statute now prevailing, “tbe action of tbe clerk in a proceeding to settle tbe line was admissible as to tbe location of tbe line,” but it was not held tbat tbe'judgment-of tbe ■clerk in a proceeding which terminated before him could work an estoppel on questions of title. Apart from tbis, in a proceeding of tbis character a finding on tbe question of ownership does not necessarily signify tbe bolder of an unincumbered title. A recognized definition of easement is “a liberty, privilege, without profit,, in tbe land of another,' existent distinct from tbe ownership of the soil,” and unless it should appear from tbe issue and evidence pertinent tbat a full and unincumbered title was tbe question determined, such a finding would not of itself necessarily work an *532 estoppel as to tbe existence of an outstanding easement in tbe property. Stokes v. Maxon, 113 Iowa, 122; Burr v. Lamaster, 30 Nebraska, 688; 9 R. C. L., pp. 735-736. On tbe record, we are of opinion tbat tbe proceedings and judgment of tbe clerk as to correct placing of a surface line does not work an 'estoppel on defendants as to tbe easement claimed by them, and tbe cause must be remanded tbat tbe issues arising on tbe pleadings may be properly determined. Error.