Euliss v. McAdams

Davis, J., (after stating the case.) There was a vast deal of unnecessary and irrelevant matter sent up with the record, some of it evidence, and much of which no doubt would have been material in settling the boundary line in [397] dispute in the trial of the cause in the Superior Court in Term, if the report of the survey and proceedings of the freeholders and processioner had disclosed what that dispute-was. It is impossible, either from the report or the plat to see what the conflicting claims of the disputing parties were. It is true the report speaks of the line “ established and processioned,” as being the same “ claimed ” by Euliss and “ disputed ” by McAdams, but there is not the slightest indication in the report or in the plat to show the contention or claim of McAdams, from which the Court can see, upon a review of the proceeding, whether the one or 'the other was the correct line. “ When a line is disputed and the processioner is forbidden by any person ” to proceed further, he is required to report the matter to the Superior Court, “stating truly all the circumstances of the case, &c”., and thereupon five freeholders are appointed, who, with the processioner, shall establish the disputed line or lines, “ and procession the same, and. make report of their proceeding,” &c. Except as to the classes of persons embraced in the proviso, § 1929 of The Code, providing that, “ Every person whose-lands shall be processioned to him according to the directions of this chapter, shall be deemed and adjudged to be the sole owner thereof, and upon any suit commenced for such land, the party in possession may plead and give the proceeding under this chapter in evidence.” Section 1930-gives to either party the right to appeal. As the processioning of land may fix the rights and title-of parties, the importance of a full and strict compliance with the requirements of the law is apparent, and unless complied with by the processioner and freeholders, their proceedings will be set aside. As was said in Hoyle v. Wilson, 7 Ired., 466, “ the report of the processioner is radically defective in not stating with precision the claim of the respective parties, so as to show [398] what lines were disputed, or how far they were disputed.” In Carpenter v. Whitworth, 3 Ired., 204, it is said by Judge Gaston: “ It would seem indispensible where, in the course of a processioning, a dispute arises with one of the persons notified, and the claimant wishes the dispute to be thus decided, the certificate (report) should be set forth to show therein what the subject of dispute is — that is to say, the respective claims and allegations of the parties — so that the matter may plainly appear upon which they are at issue. Technical terms are not indeed required, but in the language of the act, “ all the circumstances of the case,” which must mean all the things controverted, “shah be truly set forth.” “ It is not sufficient that it should be reported that two persons, owning coterminous land, claimed lines. It ought to state the lines claimed by each.” Mathews v. Mathews, 4 Ired., 155; Porter v. Durham, 90 N. C., 55; Forney v. Williamson, 98 N. C., 329, and cases cited. Concluding that the plat made by the processioner shall be considered as if made and filed with the report, it is not such a plat as is contemplated by the statute, and is, for the reasons already stated, fatally defective. The 2d, 5th, and 6th exceptions of the defendant must be ■sustained, and this renders it unnecessary for us to consider the others. There is error, and the report and' proceeding ■of the processioner and freeholders must be quashed. Error.