§ 38-1. Special proceeding to establish.

The owner of land, any of whose boundary lines are in dispute, may establish any of such lines by special proceedings in the superior court of the county in which the land or any part thereof is situated.

History

(1893, c. 22; Rev., s. 325; C.S., s. 361.)

Cross References. - As to special proceedings generally, see G.S. 1-393 et seq.

CASE NOTES

Statute Is Not Jurisdictional. - Boundary disputes are usually tried by special proceedings brought before the clerk of superior court under this Chapter. This statute is not jurisdictional, however, and by consent a boundary dispute may be originally tried before a superior court judge. Wadsworth v. Georgia-Pacific Corp., 38 N.C. App. 1, 247 S.E.2d 25 (1978), vacated on other grounds, 297 N.C. 172, 253 S.E.2d 925 (1979).

Strict Observance of Statutes Required. - As under prior statutes relating to processioning proceedings, a strict observance of statutory provisions in all material respects is required. Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964).

Purpose of Processioning. - The primary object of this section and the following sections of this Chapter is to facilitate the speedy determination of disputed boundaries between adjoining landowners who do not contest each other's title to their respective tracts. Parker v. Taylor, 133 N.C. 103, 45 S.E. 473 (1903).

The sole purpose of a processioning proceeding is to establish the true location of disputed boundary lines. Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964); Coley v. Morris Tel. Co., 267 N.C. 701, 149 S.E.2d 14 (1966).

The primary purpose of a processioning proceeding is to establish the correct location of the disputed dividing line. Such a proceeding may not be dismissed by a directed verdict. A plaintiff instituting a true processioning proceeding has the legal right to have the line ascertained and fixed by judicial decree regardless of the sufficiency of his evidence to establish the line as contended for by him. Sipe v. Blankenship, 37 N.C. App. 499, 246 S.E.2d 527 (1978), cert. denied, 296 N.C. 415, 251 S.E.2d 450 (1979), overruled on other grounds, Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985).

Only Question Is Location of True Dividing Line. - Ordinarily, in a special proceeding under this Chapter, where it is admitted that the lands of petitioner and respondent adjoin, the only question presented is the location of the true dividing line. Lane v. Lane, 255 N.C. 444, 121 S.E.2d 893 (1961).

Where the only issue to be determined is the location of a dividing line between two parcels of land, the appropriate action is a processioning proceeding as provided by this section; however, in the event title to the land is put in issue, the Clerk may not hear the case, but must transfer it to the Superior Court where it becomes, in effect, an action to quiet title pursuant to G.S. 41-10. Chappell v. Donnelly, 113 N.C. App. 626, 439 S.E.2d 802 (1994).

Title or ownership is not directly put in issue in a processioning proceeding. Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964).

Title to the land is not in issue unless so made by the pleadings. Cole v. Seawell, 152 N.C. 349, 67 S.E. 753 (1910).

Denial of Plaintiff's Ownership Converts Proceeding into Quiet Title Action. - When title is placed in issue by the defendant's denial of the plaintiff's ownership, then, by G.S. 1-399 [see now G.S. 1-301.2], the pending special proceedings are converted into a civil action to quiet title, and the court will try all the issues in controversy connected therewith. Woody v. Fountain, 143 N.C. 66, 55 S.E. 425 (1906). See Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468 (1948); Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80 S.E.2d 472 (1954).

Putting Title in Issue Converts Proceeding into Quiet Title Action. - Where the only issue to be tried is the location of a dividing line, it is a processioning proceeding under this Chapter. However, where title to the land is put in issue the clerk has no authority to pass on any question involved. He must transfer the proceeding to the regular session of superior court where it becomes in effect an action to quiet title pursuant to G.S. 41-10. Cobb v. Spurlin, 73 N.C. App. 560, 327 S.E.2d 244 (1985).

When Title Is Not in Dispute. - Where petitioners allege ownership of contiguous tracts by the respective parties, and a dispute between them as to the true dividing line, and respondents do not deny petitioners' allegation of ownership except with respect to lappages and infringements on lands owned by respondent, and join in the prayer that the dividing line be properly located, title is not in dispute. Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80 S.E.2d 472 (1954).

Proceeding Instituted by Owner Whose Boundaries Are in Dispute. - A special proceeding under this Chapter may be instituted by an owner of land whose boundary lines are in dispute. Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964).

Consent of Both Owners Not Required. - Until the passage of this section the consent of both adjoining landowners was necessary in order to have the dispute as to the bounds of their respective estates judicially determined. Under the present law either of the adjoining proprietors as a matter of right is entitled to have the land processioned, without the other's consent, and, where there has been an appeal, to have all the controverted matters settled by the jury under the guidance of the court. Green v. Williams, 144 N.C. 60, 56 S.E. 549 (1907).

But Dispute as to Boundary Necessary. - To sustain an action to establish the true dividing line between adjoining owners of land, a dispute as to the location of the line must be shown or the case on appeal will be dismissed in the Supreme Court. Wood v. Hughes, 195 N.C. 185, 141 S.E. 569 (1928).

Only disputed boundary lines are the subject of processioning proceedings. Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964).

Where the petition in processioning proceedings does not allege what boundary is in dispute between petitioners and respondents, and, while containing a legal description of the lands claimed by petitioners, fails to locate any lines as claimed by petitioners on the earth's surface, the petition is fatally defective and insufficient to confer jurisdiction on the court. Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964).

Call in Deed Is Binding. - Plaintiffs in a processioning proceeding, under this Chapter, are bound by the call in their deed for a named corner whether it be marked or unmarked. Cornelison v. Hammond, 224 N.C. 757, 32 S.E.2d 326 (1944).

Where petitioners in a processioning proceeding introduce evidence fixing the corner of a contiguous tract, and the next call in their description is by course and distance to a stone (a corner in dispute), and the evidence is to the effect that the stone was small and had been moved, the disputed corner must, as a matter of law, be fixed at the distance called for from the established corner, with the result that petitioners' evidence is sufficient to support a finding of the corner as contended by them. Allen v. Cates, 262 N.C. 268, 136 S.E.2d 579 (1964).

Effect of Agreement between Parties. - Where, in proceedings to establish the disputed boundaries between adjoining lands, a binding executed agreement between the parties has been established by uncontradicted evidence, the plaintiff is estopped from proceeding under this section, and there is no error in the court's holding that the completed agreement of arbitration operated as an estoppel as a matter of law. Lowder v. Smith, 201 N.C. 642, 161 S.E. 223 (1931).

A boundary line agreement executed by a plaintiff and a defendant is an effective plea in bar to the plaintiff's proceeding to establish the true boundary line between her property and the property of defendant, notwithstanding (1) the plaintiff failed to acknowledge her signature to the agreement before a notary public and (2) the plaintiff did not know where the line would be located on the ground at the time she signed the agreement. Smith v. Digh, 9 N.C. App. 678, 177 S.E.2d 321 (1970).

Questions of Law and Fact as to Lines. - Ordinarily, in a special proceeding brought under this Chapter, "the only question presented is the location of the true dividing line," title or ownership to land not being directly at issue. Particularly, what are petitioners' lines is determinable as a matter of law from the calls in the description of their lands. Where these lines are located on the earth's surface is determinable as a matter of fact. Taylor v. Brittain, 76 N.C. App. 574, 334 S.E.2d 242 (1985), modified and aff'd, 317 N.C. 146, 343 S.E.2d 536 (1986).

Right to Have Issue Answered by Jury. - In a processioning proceeding under this chapter, where the only issue is the true boundary line, plaintiffs, as a matter of right, are entitled to have that issue answered by jury so that controversy may be ended by judicial decree, as the statute is expressly designed to provide a means of settlement by an orderly proceeding in court. Cornelison v. Hammond, 225 N.C. 535, 35 S.E.2d 633 (1945).

A directed verdict is never proper when the question is for the jury, and in processioning proceedings the determination of the boundary is for the jury. Beal v. Dellinger, 38 N.C. App. 732, 248 S.E.2d 775 (1978).

Jury May Fix Boundary According to Evidence Where Petitioner Does Not Meet Burden of Proof. - In processioning proceedings it is the duty of the jury to locate the boundary. If petitioners fail to carry their burden of proof, the jury need not fix the line according to the respondents' contentions, but may locate the boundary wherever they feel the evidence justifies. Beal v. Dellinger, 38 N.C. App. 732, 248 S.E.2d 775 (1978).

Injunctive Relief. - To warrant the granting of an injunction in cases of special proceedings, the relief sought must be subsidiary to the relief asked in the special proceedings. Hunt v. Sneed, 64 N.C. 176 (1870).

Since this section gives no substantive relief - settles no rights, or titles to property - but only locates the dividing lines between the parties, the plaintiff was denied an injunction to restrain the defendant from commissions of trespasses when such order was asked for in the special proceedings instituted to determine the boundary line between the adjoining estates. Wilson v. Alleghany Co., 124 N.C. 7, 32 S.E. 326 (1899). See Jackson v. Jernigan, 216 N.C. 401, 5 S.E.2d 143 (1939).

Equitable Relief of Mutual Mistake. - As the procedure for the application of this section is that prescribed in G.S. 38-3, subsection (d), it was competent for the defendant under former G.S. 1-70 and G.S. 1-399 [see now G.S. 1-301.2] to plead the equitable relief of mutual mistake, having the cause transferred to the civil issue docket, and having the common grantor of the plaintiff and defendant made a party defendant. Smith v. Johnson, 209 N.C. 729, 184 S.E. 486 (1936).

Action of Trespass Converted into Processioning Proceeding. - Where, in an action in trespass, the parties stipulated that each had title to his respective tract, and that the only controversy was as to the true location of the dividing line between the tracts, the action was thereupon converted into a processioning proceeding. It is not thereafter subject to dismissal as in case of nonsuit. Welborn v. Bate Lumber Co., 238 N.C. 238, 77 S.E.2d 612 (1953).

When Nonsuit Not Proper. - Where, in a processioning proceeding it appears that the parties are owners of adjoining tracts and that a bona fide dispute exists between them as to the location of the dividing line, nonsuit is not proper. Plemmons v. Cutshall, 230 N.C. 595, 55 S.E.2d 74 (1949).

Where, in a processioning proceeding, the title of the respective parties is not in dispute, and the only real controversy is as to the location of the dividing line between the lands of the parties, nonsuit is erroneously entered. Brown v. Hodges, 230 N.C. 746, 55 S.E.2d 498 (1949).

Applied in Tice v. Winchester, 225 N.C. 673, 36 S.E.2d 257 (1945); Strickland v. Kornegay, 240 N.C. 758, 83 S.E.2d 903 (1954); Perkins v. Clarke, 241 N.C. 24, 84 S.E.2d 251 (1954); Twiford v. Harrison, 260 N.C. 217, 132 S.E.2d 321 (1963); Metcalf v. McGuinn, 73 N.C. App. 604, 327 S.E.2d 51 (1985).

Cited in Kelly v. King, 225 N.C. 709, 36 S.E.2d 220 (1945); Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953); Kanupp v. Land, 248 N.C. 203, 102 S.E.2d 779 (1958); Johnson v. Daughety, 270 N.C. 762, 155 S.E.2d 205 (1967); Gahagan v. Gosnell, 270 N.C. 117, 153 S.E.2d 879 (1967); Vail v. Smith, 1 N.C. App. 498, 162 S.E.2d 78 (1968); Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E.2d 851 (1970); Fauchette v. Zimmerman, 79 N.C. App. 265, 338 S.E.2d 804 (1986); Nichols v. Wilson, 16 N.C. App. 286, 448 S.E.2d 119 (1994).

§ 38-2. Occupation sufficient ownership.

The occupation of land constitutes sufficient ownership for the purposes of this Chapter.

History

(1893, c. 22; 1903, c. 21; Rev., s. 326; C.S., s. 362.)

CASE NOTES

Sufficiency of Ownership - When Title Not in Dispute. - The courts have construed the term "occupation," as used in this section, to mean possession, and uniformly hold that one (a) in possession of the land, and/or (b) whose title thereto is not disputed, so that no issue is raised save only that of the location of the boundary, has sufficient ownership to avail himself of the special proceedings herein provided for. Williams v. Hughes, 124 N.C. 3, 32 S.E. 325 (1899); Parker v. Taylor, 133 N.C. 103, 45 S.E. 473 (1903).

Where it was admitted that plaintiff's title was not in dispute, and that defendant's title was not in dispute except as to the true boundary line, the refusal of the court to submit an issue as to plaintiff's title, in addition to the issue as to the true boundary line, was not error. Clark v. Dill, 208 N.C. 421, 181 S.E. 281 (1935).

Sufficiency of Ownership - When Title Is in Dispute. - Where, however, the defendant puts the title to the land in issue, and the case has taken the form of a civil action, then the plaintiff can no longer rest his case by merely proving his occupation of the land as evidencing the boundary, but must go further and prove his title to the land. Woody v. Fountain, 143 N.C. 66, 55 S.E. 425 (1906). See Williams v. Hughes, 124 N.C. 3, 32 S.E. 325 (1899).

Cited in Johnson v. Daughety, 270 N.C. 762, 155 S.E.2d 205 (1967).

§ 38-3. Procedure.

1. Petition; Summons; Hearing. - The owner shall file his petition under oath stating therein facts sufficient to constitute the location of such line as claimed by him and making defendants all adjoining owners whose interest may be affected by the location of said line. The clerk shall thereupon issue summons to the defendants as in other cases of special proceedings. If the defendants fail to answer, judgment shall be given establishing the line according to petition. If the answer deny the location set out in the petition, the clerk shall issue an order to the county surveyor or, if cause shown, to any competent surveyor to survey said line or lines according to the contention of both parties, and make report of the same with a map at a time to be fixed by the clerk, not more than 30 days from date of order; to which time the cause shall be continued. The cause shall then be heard by the clerk upon the location of said line or lines and judgment given determining the location thereof.
2. Appeal to Session. - Either party may within 10 days after such determination by the clerk serve notice of appeal from the ruling of the clerk determining the said location. When notice of appeal is served it shall be the duty of the clerk to transmit the issues raised before him to the next session of the superior court of the county for trial by a jury, when the question shall be heard de novo.
3. Survey after Judgment. - When final judgment is given in the proceeding the court shall issue an order to the surveyor to run and mark the line or lines as determined in the judgment. The surveyor shall make report including a map of the line as determined, which shall be filed with the judgment roll in the cause and entered with the judgment on the special proceedings docket.
4. Procedure as in Special Proceedings. - The procedure under this Chapter, the jurisdiction of the court, and the right of appeal shall, in all respects, be the same as in special proceedings except as herein modified.

History

(1893, c. 22; 1903, c. 21; Rev., s. 326; C.S., s. 363; 1971, c. 528, s. 35.)

Cross References. - As to special proceedings generally, see G.S. 1-393 et seq.

CASE NOTES

Issue Is Location of Dividing Line. - In a processioning proceeding under this Chapter when the cause is heard on appeal, unless pleadings are complicated by other allegations the only issue is as to the true location of the dividing line. Cornelison v. Hammond, 225 N.C. 535, 35 S.E.2d 633 (1945).

Applicability of Section. - The procedure prescribed by this section is applicable only in case of a dispute as to the true location of the boundary line between adjoining landowners. Johnson v. Daughety, 270 N.C. 762, 155 S.E.2d 205 (1967).

Compliance with the Procedural Steps Mandatory. - This section must be strictly followed in all material respects and any flagrant or negligent departure therefrom will be fatal to the proceedings. Forney v. Williamson, 98 N.C. 329, 4 S.E. 483 (1887).

Court will look to substance and not to form of pleadings, and where an affidavit contains a full and explicit denial of the line set out in the plaintiff's petition it will be treated as an answer, since it contains all that is required by the section. Scott v. Kellum, 117 N.C. 664, 23 S.E. 180 (1895).

Parties to Proceeding. - All landowners whose land adjoins the disputed boundary and whose interest may be affected are necessary and proper parties. Landowners whose land adjoins boundary lines which are not in dispute, but which may connect with or intersect the disputed line, are not necessary parties, although they may be joined in the discretion of the trial judge. Metcalf v. McGuinn, 73 N.C. App. 604, 327 S.E.2d 51, cert. denied, 314 N.C. 542, 335 S.E.2d 316 (1985).

Effect of Misjoinder of Parties. - A proceeding under the provisions of this section to establish the true dividing line between adjoining owners of land will be dismissed upon demurrer for misjoinder of parties and causes of action that involve the title or interests of others not related to the matter in dispute, and which are entirely independent thereof. Rogers v. Rogers, 192 N.C. 50, 133 S.E. 184 (1926).

Failure to Comply with Subsection (c) Not Fatal. - Trial court correctly found that the prior judgment was res judicata as to the location of boundary line despite the fact the court did not issue an order to the surveyor to run and mark the boundary lines; although the trial court may not have totally complied with this section, the court strictly observed the statutory provisions in all material respects. Tindall v. Willis, 95 N.C. App. 374, 382 S.E.2d 778 (1989).

A defense bond is not required in a special proceeding to establish boundaries. Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468 (1948).

When Transfer to Regular Term Required. - The jurisdiction of the clerk in these special proceedings is limited in its scope. It extends only to those cases in which the only fact in issue is the location of the boundary line between the lands. Where the title to the land is put in issue the clerk has no authority to pass on any question involved, but must transfer the whole proceedings to the regular term of the court. Parker v. Taylor, 133 N.C. 103, 45 S.E. 473 (1903); Smith v. Johnson, 137 N.C. 43, 49 S.E. 62 (1904); Brown v. Hutchinson, 155 N.C. 205, 71 S.E. 302 (1911).

True Location of Disputed Line Must Be Alleged. - Under general rules applicable to pleadings, and specifically under this section, a petitioner must allege the true location of a disputed boundary line. Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964).

The portion of this section providing that petitioner allege "facts sufficient to constitute the location of such line as claimed by him," requires that petitioner allege facts as to the location of the (disputed) line as claimed by him with sufficient definiteness that its location on the earth's surface may be determined from petitioner's description thereof. Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964); Beal v. Dellinger, 38 N.C. App. 732, 248 S.E.2d 775 (1978).

Parties May Agree to Have Case Heard in First Instance by Presiding Judge. - This section directs that a processioning proceeding be heard first by the clerk. But the direction is not jurisdictional. A stipulation by which the parties agree to bypass the clerk and have the case heard and determined in the first instance by the presiding judge will be upheld. Strickland v. Kornegay, 240 N.C. 758, 83 S.E.2d 903 (1954); Andrews v. Andrews, 252 N.C. 97, 113 S.E.2d 47 (1960).

Proceeding Assimilated to Action to Quiet Title. - If title becomes involved in a processioning proceeding, the proceeding becomes in effect an action to quiet title under G.S. 41-10. Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468 (1948). See Woody v. Fountain, 143 N.C. 66, 55 S.E. 425 (1906).

Where, in a special proceeding under this Chapter to establish a boundary line, the defendant denies by answer the petitioner's title and pleads 20 years' adverse possession under G.S. 1-40 as a defense, the proceeding is assimilated to an action to quiet title under G.S. 41-10 and the clerk, as directed by G.S. 1-399 [see now G.S. 1-301.2], should "transfer the cause to the civil issue docket for trial during term upon all issues raised by pleadings," in accordance with rules of practice applicable to such actions as originally instituted. Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79 (1949).

Where, in a special proceeding under this Chapter to establish a boundary line, the defendant by his answer denies the petitioner's title and as a defense pleads seven years' adverse possession under color of title under G.S. 1-38, or 20 years' adverse possession under G.S. 1-40, the proceeding is assimilated to an action to quiet title. In such case, as provided by G.S. 1-399 [see now G.S. 1-301.2], the clerk "shall transfer the cause to the civil issue docket for trial during term upon all issues raised by the pleadings." Lane v. Lane, 255 N.C. 444, 121 S.E.2d 893 (1961).

Transfer of Cause and Injunctive Relief. - When defendant in a processioning proceeding puts title in issue, the cause should be transferred to the civil issue docket for trial, but when he does not do so the proceeding does not involve title or right to possession, but solely the location of the true dividing line, and therefore injunctive relief will not lie at the instance of one party to enjoin the other form retaining possession of the disputed strip, pending the final determination of the proceeding, even in the superior court on appeal, since the restraint sought is not germane to the subject of the action. Jackson v. Jackson, 216 N.C. 401, 5 S.E.2d 143 (1939). See Wilson v. Alleghany Co., 124 N.C. 7, 32 S.E. 326 (1899).

Effect of Erroneous Transfer of Cause. - The fact that the clerk in a processioning proceeding erroneously concludes that the answer converted the proceeding into an action to try title to realty, and thereupon transfers the cause to the civil issue docket for trial, does not deprive the superior court of jurisdiction to determine the processioning proceeding. Lance v. Cogdill, 236 N.C. 134, 71 S.E.2d 918 (1952).

Issues Raised and Waiver of Jury Trial. - Where a special proceeding to establish a boundary line is assimilated to an action to quiet title by the defendant's answer, the issues raised by the pleadings are (1) whether petitioner owns the land described in his petition, and (2) the location of the land so described. In such case if defendant does not tender issues pertinent to the issues above stated he waives his right to a trial by jury. Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79 (1949).

Exceptions Not Giving Right to Jury Trial. - Where compulsory reference is ordered in a special proceeding to establish a boundary line, upon defendant's denial of petitioners' title and plea of title by 20 years' advance possession, defendant's exception to the order of reference and exceptions to findings of fact made by the referee do not entitle him to a jury trial when he tenders issues which relate only to questions of fact based upon his exceptions, and fails to tender issues of fact which arise upon the pleadings and to relate such issues to his exceptions and to the findings by their respective numbers. Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79 (1949).

Effect of Defendant's Denial of Petitioners' Claims. - The third sentence of this section refers to defendant's failure to file an answer and did not apply where the respondents denied the petitioners' claims and alleged what they considered to be the correct boundary line. Beal v. Dellinger, 38 N.C. App. 732, 248 S.E.2d 775 (1978).

Right to Have Issue Answered by Jury. - In processioning proceedings it is the duty of the jury to locate the boundary. If petitioners fail to carry their burden of proof, the jury need not fix the line according to the respondents' contentions, but may locate the boundary wherever they feel the evidence justifies. Beal v. Dellinger, 38 N.C. App. 732, 248 S.E.2d 775 (1978).

Burden of Proof - Plaintiff. - Upon the institution of the proceedings to ascertain the true dividing line between the lands the burden is on the plaintiff to establish such line. Hill v. Dalton, 140 N.C. 9, 52 S.E. 273 (1905); Woody v. Fountain, 143 N.C. 66, 55 S.E. 425 (1906).

Plaintiff's burden of proof does not shift to the defendant merely because, in addition to denying the line to be as claimed by the plaintiff, he alleges another to be the dividing line. Garris v. Harrington, 167 N.C. 86, 83 S.E. 253 (1914).

The plaintiff is the actor and has the burden of establishing the true location of the dividing line. McCanless v. Ballard, 222 N.C. 701, 24 S.E.2d 525 (1943); Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311 (1956).

The burden of proof rests upon a petitioner to establish the true location of a disputed boundary line. Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964); Coley v. Morris Tel. Co., 267 N.C. 701, 149 S.E.2d 14 (1966).

Burden of Proof - Defendant. - Where a case was tried by stipulation on the defendant's counterclaim as to the location of the boundary line, the burden of proof was on the defendant to establish the boundary line. Wadsworth v. Georgia-Pacific Corp., 38 N.C. App. 1, 247 S.E.2d 25 (1978), vacated on other grounds, 297 N.C. 172, 253 S.E.2d 925 (1979).

If the plaintiffs are unable to show by the greater weight of evidence the location of the true dividing line at a point more favorable to them than the line as contended by the defendants, the jury should answer the issue in accord with the contentions of the defendants. Coley v. Morris Tel. Co., 267 N.C. 701, 149 S.E.2d 14 (1966).

Plaintiffs May Assert Alternative Boundaries. - In a proceeding to establish disputed boundary lines petitioners may contend that the true boundary is shown by the line on surveyor's map marked by letters as alleged in their petition and also may contend that the true boundary is shown by the fence on the surveyor's map by reason of title having vested in them to the land in dispute up to the fence by adverse possession under G.S. 1-40. They may assert both contentions leaving it to the court and jury to say which line, if either, they have carried the burden of establishing. Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311 (1956).

Duty of Jury to Locate Boundary. - In a processioning proceeding, it is the duty of the jury to locate the boundary; petitioner has the burden of proof, and if he fails to carry that burden, the jury, in the absence of agreement that one or the other is the true line, need not fix the boundary according to respondent's contentions, but may locate the line wherever the jury feels the evidence requires. Combs v. Woodie, 53 N.C. App. 789, 281 S.E.2d 705 (1981).

Questions of Law and Fact. - What is the true dividing line between two contiguous tracts of land is a question of law for the court; where such line is actually located on the premises is an issue of fact for the jury. Lance v. Cogdill, 236 N.C. 134, 71 S.E.2d 918 (1952); Welborn v. Bate Lumber Co., 238 N.C. 238, 77 S.E.2d 612 (1953); Andrews v. Andrews, 252 N.C. 97, 113 S.E.2d 47 (1960). See Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311 (1956); Coley v. Morris Tel. Co., 267 N.C. 701, 149 S.E.2d 14 (1966).

Where the true boundary is, is a question of fact for the jury; what the boundary is, is a question of law for the court. Combs v. Woodie, 53 N.C. App. 789, 281 S.E.2d 705 (1981).

A description contained in a junior conveyance cannot be used to locate the lines called for in a prior conveyance. The location of the lines called for in the prior conveyance is a question of fact to be ascertained from the description there given. Coley v. Morris Tel. Co., 267 N.C. 701, 149 S.E.2d 14 (1966).

The provision of a judgment for marking the line as judicially determined, as provided by subsection (c) of this section, was a mere direction for the performance of a ministerial duty which in no way affected the finality of the determination of how the line should be run. Harrill v. Taylor, 247 N.C. 748, 102 S.E.2d 223 (1958).

Evidence Generally. - The general rules for ascertaining boundaries apply equally well when recourse is had through special proceedings. Tallassee Power Co. v. Savage, 170 N.C. 625, 87 S.E. 629 (1916). See Woodard v. Harrell, 191 N.C. 194, 132 S.E. 12 (1926), containing dicta to the effect that parol evidence of location of boundary line may be properly admitted, if the parties were merely locating the true boundary line, but not to show a verbal agreement to change the true dividing line.

Surveyor's Report as Evidence. - The surveyor, when acting under this section, is not in any sense a referee, and his report to the court should not contain conclusions of law, but should only set forth a detailed account of the facts of the case, and when it does this it is entitled to great evidential weight, although it is not conclusive as to the results contained therein. Norwood v. Crawford, 114 N.C. 513, 19 S.E. 349 (1894). See Green v. Williams, 144 N.C. 60, 56 S.E. 549 (1907).

Surveyor may not give his opinion as to where the boundary is. Combs v. Woodie, 53 N.C. App. 789, 281 S.E.2d 705 (1981).

What Report of Processioners Must Contain. - Where one of the parties objects to the processioner's proceeding, the processioner must, in his return to the court, state "all the circumstances of the case," as for instance, the nature of the objection, the line or lines claimed by each party, etc. Carpenter v. Whitworth, 25 N.C. 204 (1842).

A report of a processioner is radically defective when it does not state, with precision, the claims of the respective parties, so as to show what lines were disputed or how far they were disputed, and no undue laxity in the proceedings in this respect will be tolerated by the court. Hoyle v. Wilson, 29 N.C. 466 (1847).

Acts and Admissions of Adjoining Proprietors as Evidence. - When a dividing line between two tracts can be located by the calls in a deed, the statements and acts of adjoining landowners are not competent evidence as to the location of the boundary line, but where the line is in dispute and is unfixed and uncertain, the acts and admissions of the adjoining proprietors recognizing a certain line as the proper boundary line are evidence competent to be submitted to the trier of the facts. Wadsworth v. Georgia-Pacific Corp., 38 N.C. App. 1, 247 S.E.2d 25 (1978), vacated on other grounds, 297 N.C. 172, 253 S.E.2d 925 (1979).

The clerk's jurisdiction to enter a judgment by default in a processioning proceeding is based solely on the sentence in the portion of this section reading "If the defendants fail to answer, judgment shall be given establishing the line according to petition." Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964).

Failure to Except to Judgment of Clerk and Take Appeal within Time Allowed. - Where there is a failure to except to judgment of the clerk in a processioning proceeding fixing the boundary line between the contiguous tracts, and a failure to take an appeal from such judgment within the time allowed by this section, without any showing of excusable neglect, a petition for certiorari to review the judgment of the clerk is properly denied. Johnson v. Taylor, 257 N.C. 740, 127 S.E.2d 533 (1962).

Where Judgment Affirmed on Appeal. - Where judgment in a processioning proceeding establishing the dividing line between the tracts of the respective parties is affirmed on appeal, the lower court may retain the cause thereafter only for the purpose of putting into effect the provisions of this section. Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80 S.E.2d 472 (1954).

Judgment of Clerk as Res Judicata - Where Title to Land Not in Issue. - Where the only fact in issue is the establishment and location of the boundary line, then the judgment of the clerk is, to this extent, binding on the parties and they may not again litigate on this precise point. Whitaker v. Garren, 167 N.C. 658, 83 S.E. 759 (1914).

The clerk's judgment may not estop the parties from asserting in a separate action title in the land. Nash v. Shute, 182 N.C. 528, 109 S.E. 353 (1921).

Judgment of Clerk as Res Judicata - Where Title in Issue. - Where, however, the parties join issue upon the title and the case is transferred to the regular term of the court, a judgment therein estops the parties both as to the title and the location of the line. Whitaker v. Garren, 167 N.C. 658, 83 S.E. 759 (1914). See Nash v. Shute, 182 N.C. 528, 109 S.E. 353 (1921).

Parties on Appeal. - Under the provision contained in this section for appeal by either party to the regular term (now session) of the court, other parties having an interest in the locus in quo may, upon motion, be permitted to come in. Batts v. Pridgen, 147 N.C. 133, 60 S.E. 897 (1908).

Applied in Simpson v. Lee, 26 N.C. App. 712, 217 S.E.2d 80 (1975).

Cited in Green Hi-Win Farm, Inc. v. Neal, 83 N.C. App. 201, 349 S.E.2d 614 (1986); Anderson/Grifffin Props., LLC v. R.L. Wallace Constr. Co. (In re Boundary Dispute Between Lots 97 & 98 of the C.M. Bost Estate), 199 N.C. App. 522, 681 S.E.2d 553 (2009).

§ 38-4. Surveys in disputed boundaries.

1. When in any action or special proceeding pending in the superior court the boundaries of lands are drawn in question, the court may, if deemed necessary, order a survey of the lands in dispute, in accordance with the boundaries and lines expressed in each party's titles, and such other surveys as shall be deemed useful.
2. Surveys pursuant to this section shall be made by one surveyor appointed by the court, unless the court, in its discretion, determines that additional surveyors are necessary. The surveyor or surveyors shall proceed according to the order of the court, and make the surveys and as many plats thereof as shall be ordered.
3. Upon the request of any party to the action or special proceeding, the court shall call such surveyor or surveyors as the court's witness, and any party to such action or proceeding shall have the privilege of direct examination, cross-examination, and impeachment of such witness. The fact that such witness is called by the court shall not change the weight, effect or admissibility of the testimony of such witness, and upon the request of any party to the suit, the court shall so instruct the jury.
4. The court shall make an allowance for the fees of the surveyor or surveyors and they shall be taxed as a part of the costs. The court may, in its discretion, require the parties to make a deposit to secure the payment of such fees, and may, in its discretion, provide for the payment of such fees prior to the termination of the suit.

History

(1779, c. 157; 1786, c. 252; R.C., c. 31, s. 119; Code, s. 939; Rev., s. 1504; C.S., s. 364; 1967, c. 33.)

CASE NOTES

This section vests in the court a sound discretion within the limits defined. Vance v. Pritchard, 218 N.C. 273, 10 S.E.2d 725 (1940).

Survey Not Required. - While the better practice is to order a survey in a proceeding to establish a boundary line, this section, the pertinent statute, does not require the court to do so. Young v. Young, 76 N.C. App. 93, 331 S.E.2d 769 (1985).

Better Practice Is to Order Survey. - While this section does not require the court to order a survey of the lands in dispute when the boundaries of lands are in question, it is the better practice to do so. Smothers v. Schlosser, 2 N.C. App. 272, 163 S.E.2d 127 (1968).

When Expenses of Surveys Are Taxable as Costs. - The expense of procuring surveys, maps, plans, photographs and documents are not taxable as costs unless there is clear statutory authority therefor or they have been ordered by the court. City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972).

Amount of the allowance for fees of the surveyor is within the court's discretion, after considering the evidence as to the work done. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814 (1984).

Unpaid Expenses. - A court which appoints a surveyor does not lack the authority to take heed of his request for unpaid expenses in the same case in which it appointed him, even though the surveyor is not a party to the underlying action. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814 (1984).

Clerk Has No Power to Make Allowance for Costs. - The word "court," as used in the last provision of this section, refers to the judge, and not to the clerk, and where the trial judge has failed to make an order allowing compensation to the surveyor, the clerk has no power to make the allowance; but on appeal from the clerk's refusal, such order will be made by the judge of the superior court. LaRoque v. Kennedy, 156 N.C. 360, 72 S.E. 454 (1911); Cannon v. Briggs, 174 N.C. 740, 94 S.E. 519 (1917); Ipock v. Miller, 245 N.C. 585, 96 S.E.2d 729 (1957).

Where in an action involving a boundary dispute a survey has been ordered and made, and the trial judge has failed to order compensation, the clerk has no authority to do so. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814 (1984).

Correction of Order. - The trial court's failure to allow and tax costs could be considered an oversight or omission in the order, and since the substantive rights of the parties were not affected thereby, the court had authority under G.S. 1A-1, Rule 60(a) to correct the inadvertent omission of costs from its order. Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814 (1984).

Applied in Metcalf v. McGuinn, 73 N.C. App. 604, 327 S.E.2d 51 (1985).

Cited in Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468 (1948); York Indus. Center v. Michigan Mut. Liab. Co., 271 N.C. 158, 155 S.E.2d 501 (1967); Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984).