Andrews v. Bruton
86 S.E.2d 786
N.C.
1955
Check Treatment
Bobbitt, J.

A plaintiff must make out his case secundum allegata. Barnes v. Caulbourne, 240 N.C. 721, 83 S.E. 2d 898. Thеre can be no recovery except on the case made by his pleadings. Collas v. Regan, 240 N.C. 472, 82 S.E. 2d 215. Proof without allеgation is no better than allegation without proof. Messick v. Turnage, 240 N.C. 625, 83 S.E. 2d 654. When there is a material variance between allegation and proof, motion for judgment of nonsuit will be allowed. Suggs v. Braxton, 227 N.C. 50, 40 S.E. 2d 470.

The subject matter of which the court had jurisdiction extended only ‍‌‌​​​​​​​​‌‌‌​​‌​​‌​​​‌​‌​​​‌​​‌​​‌​​‌​‌​‌‌‌‌​​‌‍to the tract of land as described in plaintiffs’ allegations. Deans v. Deans, 241 N.C. 1, 84 S.E. 2d 321, and cases cited.

It will be readily observed that the tract of land described in plaintiffs’ allegations, if located, would be triangular in shape. Plaintiffs made no attempt to locate their land in accordance with the calls alleged.

Plaintiffs undertook to establish ownership of Lot No. 3 in the division (1860) of the Edmund Andrews land, a quadrangular tract containing 35 acres, more or less. But plaintiffs’ allegations do not describe said Lot No. 3, nor do they incorporate by reference a description thereof as set forth in any deed, map or land division. Finding of fact No. 1 was that the deeds under which plaintiffs claim convey to them “the lands described in the complaint.” Henсe, we refrain from discussing either the competency or the sufficiency of the evidence offеred by plaintiffs for the purpose of locating (1) the boundaries of the Edmund Andrews tract, (2) the boundaries of sаid Lot No. 3, and (3) the boundaries of the area where the timber was cut within said Lot No. 3.

*96 Both for lack of jurisdiction and for material variance between allegation and proof, defendant’s motion for judgment of nonsuit should have been allowed.

It seems appropriate to call attention to certаin well-established rules. Their allegations as to title ‍‌‌​​​​​​​​‌‌‌​​‌​​‌​​​‌​‌​​​‌​​‌​​‌​​‌​‌​‌‌‌‌​​‌‍having been denied, it was incumbent upon plaintiffs to establish both ownership and trespass. Norman v. Williams, 241 N.C. 732, 86 S.E. 2d 593, and cases cited. Whether relying upon their deeds as proof of title or of color of title, they were required to locate the land by fitting the description in the deeds tо the earth’s surface. G.S. 8-39; Locklear v. Oxendine, 233 N.C. 710, 65 S.E. 2d 673; Parsons v. Lumber Co., 214 N.C. 459, 199 S.E. 626. In the absence of title or color of title, they were required to establish the known and visible lines and boundaries of the land actually occupied for the statutory period. Carswell v. Morganton, 236 N.C. 375, 72 S.E. 2d 748.

It is well to note that no issue of title was involved in Newkirk v. Porter, 240 N.C. 296, 82 S.E. 2d 74. The sole issue was the location of the true dividing line between adjoining owners. Such is not the case here. Here defendant explicitly denied plaintiffs’ title.

Attention is directed to the fact that plaintiff sued for the vаlue of the timber alleged to have been converted by defendant to his own use. However, the damages awarded by the judgment are based on the difference in ‍‌‌​​​​​​​​‌‌‌​​‌​​‌​​​‌​‌​​​‌​​‌​​‌​​‌​‌​‌‌‌‌​​‌‍value of the 35 acre tract, being said Lоt No. 3, before and after the alleged trespass. When one wrongfully enters upon the land of another and cuts trees thereon, the owner of the land has an election of remedies. Williams v. Lumber Co., 154 N.C. 306, 70 S.E. 631; Brady v. Brady, 161 N.C. 324, 77 S.E. 235; Cedar Works v. Lumber Co., 161 N.C. 603, 77 S.E. 770; Elevens v. Lumber Co., 207 N.C. 144, 176 S.E. 262; Bunting v. Henderson, 220 N.C. 194, 16 S.E. 2d 836. Damages recoverable by plaintiffs, if any, would have to be determined on the basis therefor as alleged. Nebel v. Nebel, 241 N.C. 491, 85 S.E. 2d 876; Dobias v. White, 240 N.C. 680, 83 S.E. 2d 785.

Plaintiffs alleged that defendant owned land adj oining their lands on the north. Defendant admitted that he owned the land adj оining on the north the land claimed by plaintiffs but denied plaintiffs’ title.

Defendant assigns as error the refusal of the court to enter judgment establishing defendant’s ownership of the tract of land described in the answer. He bases his position upon finding of fact No. 6, to which no exception was taken, viz.: “According to the Clark survey in this action, beginning at the iron stake cоrner No. 1 on Map No. 2, pointed out by the defendant and claimed by him as his southwest corner, and running the boundaries of the tract of land claimed by defendant, the disputed area shown on Map No. 2 is included in the description of the *97 lands claimed by the defendant in his answer.” Defendant argues that since plaintiffs allegеd that defendant ‍‌‌​​​​​​​​‌‌‌​​‌​​‌​​​‌​‌​​​‌​​‌​​‌​​‌​‌​‌‌‌‌​​‌‍owned the land adjoining plaintiffs’ on the north and since the boundaries of defendant’s tract as claimed by him include the area where the timber was cut, this in effect established defendant’s title to the disputed area. This is a non sequitur. The quoted finding does not establish defendant’s ownership of the land comprising the disputed areа, but only that defendant claims it does.

Defendant offered evidence bearing upon the location of the tract described in the answer. Neither the referee nor the court made specific findings оf fact bearing upon defendant’s evidence and contentions as to the location of his boundaries.

It is noted that the location of the lappage “of about 20 acres taken off by James Livingstоn ‍‌‌​​​​​​​​‌‌‌​​‌​​‌​​​‌​‌​​​‌​​‌​​‌​​‌​‌​‌‌‌‌​​‌‍Estate,” specifically excepted from the boundaries described in the answer, is not shown.

Treating thе defendant’s answer as alleging a cross action to establish his ownership of the tract of land desсribed therein, we note that no determination was made either by the referee or by the court of thе issues raised thereby. Hence, defendant’s cross action is still pending; and the cause must go back to the Superior Court for trial thereof. Plaintiffs may move for leave to file amended pleadings, if so advised.

For reasons stated, the judgment of the court below is reversed as to plaintiffs’ action, and a new triаl on defendant’s cross action is ordered. This disposition vacates the findings of fact and conclusions of law of the referee.

As to plaintiffs’ action: Reversed.

As to defendant’s cross action: New trial.

BaRNHill, C. J., took no part in the consideration or decision of this case.