Rhodes v. . Ange

Walker, J. The nature of a processioning proceeding has frequently been considered and decided by this Court. Its primary and leading purpose is to settle boundaries as between adjoining proprietors of land; but while this is the main object, .the title to land may necessarily become the subject of inquiry, in order to ascertain the ultimate fact as to the true location of the boundary. In such proceedings, unless perhaps both parties claim under a paper title, it will be difficult if not impossible to confine the investigation required to the mere location of the dividing line. When both parties claim by right of possession, or one by a paper title and the other by adverse possession, it will become necessary in the large majority, if not all, of the cases to ascertain the nature and extent of the possession, and, even in the case of a claim under a paper title, the true location of corners and of boundaries, as preliminary to the location of the dividing line which is in dispute. So that it may, speaking generally, be safely said that the title to the land is not involved in such a proceeding; but that means that it is not directly involved, for in many cases, as we have already shown, it may become incidentally one of the questions or issues in the case, which must be decided before the main issue as to the- location of the dividing line can be determined. The case of partition proceedings is a similar one and illustrates the point, as shown in Woody v. Fountain, 143 N. C., at p. 69. There the question of title is not necessarily involved, but it may become necessary upon a plea of sole seizin to deter *27 mine, first, bow tbe parties stand witb reference to tbe title before deciding whether they are tenants in common and entitled to partition. It is a preliminary question which must be settled before tbe relief prayed can be granted. A partition proceeding will very often run into an action of ejectment, and tbe same may be said of a processioning proceeding. In tbe latter case tbe ownership of tbe land on either side of tbe alleged disputed line, which is a prerequisite to tbe right of having tbe land processioned, cannot always be determined by mere occupancy, but often will require an investigation of tbe title, as in other cases where tbe issue is not primarily involved. Tbe failure to note this distinction between a proceeding where tbe location of a line is solely involved and one where tbe title may incidentally arise has caused tbe question in this appeal to be presented and tbe Court to be misunderstood. ¥e have held in numerous decisions that tbe question of title may be raised by tbe pleadings or by tbe facts of tbe particular case. Parker v. Taylor, 133 N. C., 103; Hill v. Dalton, 136 N. C., 339; s. c., 140 N. C., 9; Smith v. Johnson, 137 N. C., 43; Stanaland v. Rabon, 140 N. C., 202; Davis v. Wall, 142 N. C., 450; Woody v. Fountain, 143 N. C., 66; Green v. Williams, 144 N. C., 60; Brown v. Hutchinson, 155 N. C., 205. It was said in Green v. Williams, supra: “Our processioning act is similar in some respects to tbe 'writ of perambulation’ at common law, which was sued out by consent of both parties when they were in doubt as to tbe bounds of their respective estates, and was directed to tbe sheriff, who was commanded to make tbe 'perambulation’ witb a jury, and to set tbe bounds and limits between them in certainty. Fitz. Nat. Brev., 133. There it was done by consent of tbe parties, and when there was no dispute as to tbe title and none as to tbe right to occupy tbe adjoining tenements, while witb us either of tbe adjoining proprietors, where a dispute as to tbe true dividing boundary has arisen, is entitled to have tbe land processioned, without tbe other’s consent, and even when tbe question of title may become incidentally involved, and then all controverted matters, where there has been an appeal, are settled by tbe jury under tbe guidance of tbe court.” In this case tbe judge instructed tbe jury that they could consider tbe possession of tbe respective parties, witb respect to tbe disputed line, as evidence to determine where tbe true line is located, but that mere possession did not of itself fix the line, it being only an evidential circumstance upon tbe question as to where it is. But be also told them that “if the defendant, and those under whom be claims, bad been in possession of tbe land in question up to tbe lane for twenty years, or longer, prior to tbe beginning of this action,” they would answer tbe issue according to tbe defendant’s contention, that- is, “beginning at tbe stake in tbe road and running along *28 the lane a straight line by the poplar to the swamp.” This instruction was given at defendant’s request. The addition to it was correct, as adverse possession cannot confer title beyond its limits. "When the charge is read as a whole, as it should be, it is clearly seen that the defendant got the full benefit of his adverse possession in locating the line as he contended it should be. The only issue submitted (without objection) was: “What is the true dividing line between the lands of the plaintiff and those of the defendant?” The question in controversy, was whether the line ran from A to B or from A to C. But notwithstanding the form of the issue, the court allowed the jury to consider the defendant’s possession, and his title accruing therefrom, in locating the true line. If it be conceded that the pleadings put the title in issue, the issue did not do so directly, and even if it did, the defendant has been given the full benefit of his possession. The jury evidently found that the defendant had no such possession as established the line at A. C. The judge was also correct in stating that the testimony of the surveyor as to the true line did not necessarily establish it, but was only evidence of it, and the same is true as to the conduct of the parties with reference to the lane. There is no error that we can find in the ease which warrants a new trial. No error.