Smith v. Johnson.

Connor, J., after stating the case; Neither the record nor the case on appeal states upon what ground the motion for judgment of nonsuit was based, and we are not favored with any argument or brief on the part of the defendants. The plaintiffs’ brief states that the following issue was submitted to the jury: “What is the true boundary line between plaintiffs and defendants?” Chapter 22. Acts 1893, provides “That the owner of land, any of whose boundary lines are. in dispute, may establish said line or lines hy special proceedings. * * * The owner shall file his petition stating facts sufficient to constitute the location of said line or lines, and making defendants all adjoining owners whose interest may be affected by the location of said line. If the answer deny the location set out in the petition, the Clerk shall issue an order according to the contention of both parties and make report of the same; with a map. * * * The cause shall then be heard by the Clerk and judgment given determining the location thereof.” Provision is made for an appeal. This Court said in Williams v. Hughes, 124 N. C., 3: “We do not think it was intended to try title to land under this statute, but to procession, locate and establish the lines between adjacent land-owners. It gives the right to the *46 owners of tbe land and provides that- the occupancy of land by the petitioner shall be sufficient evidence of ownership to entitle the petitioner to relief under this act.” In that case the issues were confined to the ownership of the land by the plaintiff, and the inquiry whether the true boundary lines between the plaintiff and defendant were those set out in the complaint. The Court referring to the issue said: “And for this purpose' it seems to us that it would be better to broaden the second issue by allowing the jury to locate the boundary line, whether it was where the petitioner alleged it to be or not.” . The two questions presented by the record in this case, both of which should have been submitted to the jury, are, first, whether the plaintiffs were the owners of the land described in the complaint, and second, what was the true dividing line between them and the defendants. There was certainly some evidence to go to the jury upon the first- question. The plaintiffs testified that they were in possession of the land described in the map. In the absence of any map we must assume that they referred to the same land which is referred to in the judgment of the Clerk. If the jury found that the plaintiffs were the owners, and for that purpose it was sufficient to show that they were in the occupancy of the land, the only question for them to determine wasí the location of the true boundary line between the occupancy of the land, the only question for them to determine was the location of the true boundary line between the plaintiffs and defendants. In Williams v. Hughes, supra, the Court charged the jury “That upon all’the evidence they could say where the line was.” This instruction was approved by this Court. The purpose of this special proceeding, as set forth in the statute and frequently held by this Court, is not to try the title to the land but only to ascertain the boundary lines. Midgett v. Midgett, 129 N. C., 21; Vandyke v. Farris, 126 N. C., 744, in which it is expressly *47 held that tlie title was not in issue, tbe Court saying that by pursuing the provisions of the act the lines between the parties may be established, but this did not prohibit either party from asserting his rights to the title of the same land — the Chief Justice saying': “What benefit the act confers to the citizen it is not our province to say.” In Parker v. Taylor, 133 N. C., 104, it is held that the judgment of the Clerk determining the location of the line is conclusive upon parties and privies to the action. It would seem that from what is said by the present Chief Justice in that case that upon the issue raised by the answer upon the plaintiff’s first allegation, the cause should have been transferred to the Superior Court for trial as in other cases of special preceeding. If the jury had found that the plaintiff was the owner of the land described in his complaint, the case would have been remanded with direction to- the Clerk to proceed to, have the line in dispute settled; if he was not the owner, the proceeding should have been dismissed. As the Clerk proceeded to direct the survey before trying the issue, and the whole cause without objection went to the Superior Court upon appeal, the two questions should have been tried there before the jury. We presume that this was his Honor’s view, and that in his opinion the plaintiffs failed to show ownership or occupancy of the land claimed by them. Without the benefit of a map, it is impossible for us to see exactly how the matter was, but as the judgment is of non-suit, the testimony must be taken most favorably for the plaintiffs. We assume that in saying “I am in possession of the land on plat, blue 1, 2, 3, 4, to 1,” * * * he referred to the land described in his complaint. While in many eases the judgment of nonsuit, where it clearly appears that in no- aspect of the testimony the plaintiff is entitled to- recover, is proper, it is the better practice to submit the questions raised by the pleadings to the jury under proper instructions, *48 so that a verdict may be rendered settling the matters in controversy. We think upon examination of the entire record that there was error in the judgment of nonsuit. There was some evidence to go to the jury upon the question of ownership evidenced by occupancy. Let it be so certified. Error.