Hill v. Dalton.

Oonnoe, J. This is a special proceeding instituted pursuant to the provisions of chapter 22, Acts 1893, being an amendment to chapter 48 of The Code entitled “Processioning.” The proceeding was begun before the Clerk, and after passing through the various stages of the litigation as prescribed by the statute reached the Superior Court by appeal. The case is distinguished from the large majority of such proceedings in that, under the wise guidance of. the able counsel on both sides of the controversy, it has been successfully carried through the various and usually disastrous paths of litigation in the search after the “true line” without any suggestion of irregularity or departure from orderly procedure. The sole suggestion of this character is found in the very mild remark of the defendant at the end of his brief: *340 “But it may be doubted if tbe Clerk bad jurisdiction of tbe controversy as constituted.” Usually this comes from tbe party wbo begins tbe proceeding to “procession” bis land and settle a “disputed line” — resulting generally in finding a large number of disputed lines and involving parties, counsel and Court in a hopeless labyrinth, tbe surveyor being tbe only person who takes profit by tbe controversy. It became necessary to locate a grant issued to lames McKaughn before tbe line in dispute could be settled. This was tbe senior grant. A grant junior thereto was issued to John Jacob Blum and one just south thereof to John Rights. Tbe plaintiff claimed under this grant, “beginning at a pine, corner of tbe John Jacob Blum tract, thence east with line of that tract fifty-seven chains to a white-oak in tbe James Mc-Kaughn line, thence south,” etc. The defendants are owners of adjoining tracts. Ilis Honor submitted the following issue to the jury: “Which is the true and correct dividing line between the lands of petitioner and defendants ?” ' The only exception necessary to be considered is to the following instruction given to the jury: “The Court further told the jury that the correct location of the James McKaughn grant being the older, the true line of that grant would determine the dividing line between the parties; that the said grant, being the older, could not be changed at all by the location of the John Jacob Blum grant which was younger, yet the location and calls of the John Jacob Blum grant if established could be considered by the jury as a circumstance on the question of whether the James McKaughn tract had been properly located as claimed by defendants.” The criticism of the defendants is directed to so much of the instruction as directs the jury to consider the calls and location of the Blum grant as a circumstance in locating the McKaughn grant. It would seem that this Court has held with the contention of the defendants. In Sasser v. Herring, 114 N. C., *341 340, tbe Court beld it was error to charge tbe jury that they could consider tbe calls in a junior grant, when ascertained, as a circumstance taken in connection with other circumstances in ascertaining tbe true line of tbe senior grant. This decision was cited and approved in Euliss v. McAdams, 108 N. C., 507. Tbe marking of a tree or placing a stone at tbe tbe time of surveying tbe junior grant to mark tbe end of a call for tbe line of tbe senior grant could have no other force or effect than tbe declaration of tbe surveyor that such marked tree or stone was in such line. In tbe absence of any evidence that be was dead, or that bis declaration was competent under tbe line of decisions of this Court- as cited and reviewed by Walker, J., in Yow v. Hamilton, at this term, 136 N. C., 357, such declaration is incompetent. Tbe exception must be sustained. Tbe defendants except to that- portion of bis Honor’s charge which they insist placed tbe burden of proof upon them. In this proceeding tbe form of tbe issue, which we think is correct, renders it difficult to say who bolds tbe affirmative or carries tbe laboring oar. Tbe purpose is to establish a disputed line. As tbe plaintiff is tbe orginal actor, it would seem that tbe burden is upon him to make good bis contention. It is not perfectly clear that bis Honor placed tbe burden on tbe defendants. Nor tbe error in tbe instruction there must be a New Trial.