83 S.E. 253 | N.C. | 1914
This is a proceeding to establish the dividing line between the plaintiff and defendant.
The plaintiff contends that the true line is from A to B on the plat, and the defendant, that it is from C to A, the land in dispute being a triangle between the lines A B and A C.
Both parties introduced evidence to sustain their contentions.
The jury returned the following verdict:
"1. What is the true dividing line between the plaintiffs and defendant? Answer: `A B.'
"2. Have the defendants been in possession of the lands lying south of the line indicated by `C to A' for more than seven years, adversely, under color of title? Answer: `No.'
"3. Have the defendants been in possession of the lands lying south of the line indicated by `C to A,' adversely, for more than twenty years? Answer: `No.'"
His Honor charged the jury, among other things: "If the evidence satisfies you by its greater weight, the burden being upon the plaintiff to establish the line as contended for by him, that this ash was *123
(87)
[EDITORS' NOTE: THE MAP IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
established as a corner at that time and marked, and that a line was run and marked from that point north 77 west 66 1/2 chains with the intention and purpose of making that the dividing line between the two tracts, then your answer to that issue would be the line `A to B'; that would be finding that the plaintiffs' contention is the true dividing line."
And again: "The defendant contends that upon that evidence you ought to be satisfied that the true dividing line established at the time these lands were divided was the line C to A. The burden is upon him to satisfy you by the greater weight of the testimony of the truth of his contention; and if he has, you will find that the true dividing line and answer this issue C to A." The defendant excepted.
There was a judgment in favor of the plaintiff, and the defendant excepted and appealed.
The plaintiff became the actor, and assumed the burden of proof to establish the true line between him and the defendant, when he instituted the proceeding (Hill v. Dalton,
The precise question was considered and decided in Woody v. Fountain,
The charge given cannot be distinguished from the one declared to be erroneous, and there must therefore be a
New trial.
Cited: Tillotson v. Fulp,