Wadsworth v. Georgia-Pacific Corp., 38 N.C. App. 1

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38 N.C. App. 1 | N.C. Ct. App. | 1978

Lead Opinion

WEBB, Judge.

We affirm the judgment of the superior court.

This action was converted from an action for wrongful cutting of timber and trespass to one to determine a boundary line. Boundary disputes are usually tried by special proceedings brought before the Clerk of Superior Court under Chapter 38 of the General Statutes. This statute is not jurisdictional, however, and by consent a boundary dispute may be originally tried before a superior court judge. Andrews v. Andrews, 252 N.C. 97, 113 S.E. 2d 47 (1960).

The appellants’ first contention is that the court committed error by not holding that the parties had made a binding agreement as to the boundary line. If the agreement between the parties as to the boundary line was conditioned upon something else before becoming effective — in this case the settlement of a claim by the plaintiffs for timber cut by the defendant — it was not an agreement until that settlement was made. Lerner Shops v. Rosenthal, 225 N.C. 316, 34 S.E. 2d 206 (1945). The Court found as a fact based on competent evidence that there was such a condition upon the agreement, and we are bound by that finding. The court made other findings in regard to the effectiveness of the line agreement which appellant contends were not proper. We do not discuss them. The finding by the court was sufficient to support the portion of the judgment which held that the agreement as to the location of the line was not final and it cannot be disturbed because there is another finding which may not be proper. 1 Strong, N.C. Index 3d, Appeal and Error, § 57.2, p. 342.

The court found that the boundary line was located according to the contention of the defendant. The plaintiffs contend this was error. Since the case was tried by stipulation on the defendant’s counterclaim as to the location of the boundary line, the *5burden of proof was on the defendant to establish the boundary line. The question before this Court is whether the defendant offered sufficient, competent evidence to support this finding by the superior court. Neither side offered a deed in evidence, so the court could not have found the boundary on the basis of a deed. 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 evidenhe competent to be submitted to the trier of the facts. Kirkpatrick v. McCracken, 161 N.C. 198, 76 S.E. 821 (1912); Wiggins v. Rogers, 175 N.C. 67, 94 S.E. 685 (1917), and Taylor v. Meadows, 175 N.C. 373, 95 S.E. 662 (1918). The defendant introduced evidence that Georgia-Pacific and its predecessors in title since at least 1946 had considered the line for which Georgia-Pacific contended as the boundary between the tracts. Georgia-Pacific had cut timber up to this line and the plaintiffs’ predecessor in title had cut timber up to this line on his side of it. Georgia-Pacific had planted timber up to it. We hold that this was sufficient, competent evidence for the court to hold that the boundary line was as contended for by Georgia-Pacific. There was evidence from which the court could have found otherwise, but we are bound by the findings of fact of the superior court.

Some of the findings of fact to support the court’s conclusion as to the location of the boundary line are not supported by the evidence. Nevertheless, the court found sufficient facts supported by competent evidence to support this conclusion and it will not be disturbed.

The judgment is affirmed.

Judge MORRIS concurs in result. Judge Hedrick dissents.

Concurrence Opinion

Judge MORRIS

concurring.

I concur in the result reached. It is true that neither party introduced into evidence a deed. Under ordinary circumstances, *6absent evidence that the boundary line cannot be accurately determined from the deed, the statements and acts of the landowners would not be competent evidence in locating the boundary between them. Here, however, neither party offered any objection to the evidence upon which the court based its findings as to the location of the line. Neither should now be heard to complain.

Dissenting Opinion

Judge Hedrick

dissenting.

As pointed out in the majority opinion neither party offered into evidence the deeds to their respective tracts. The court, therefore, necessarily based its finding that the boundary line was as contended for by the defendants on the evidence of the surveyor, Liverman, that he surveyed a line dividing the two tracts from survey chops on trees, a fence for a part of the way and a drain or ditch for part of the way. With respect to the line Liverman surveyed, which the trial court accepted as the dividing line, Liverman testified: “I did not use any other documents other than what I found on the ground to locate that line.”

In my opinion the best evidence as to the location of the dividing line between the two tracts, since the respective titles were not in dispute, would be the deeds to the two tracts. In my opinion before the boundary line can be established by evidence aliunde the record, the party with the burden to establish the line must first prove that the dividing line cannot be located on the ground from the calls in the deeds. Thus, in the present case, it is my opinion that the trial court’s finding the line to be as contended for by defendant is not supported by competent evidence. While the parties stipulated that the title to the two tracts of land was not in dispute, the plaintiff did not agree that the court could locate the line without regard to the deeds. Indeed, the record discloses that the plaintiff objected throughout the trial to the surveyor’s testimony upon which the trial judge relied to locate the line. I tremble to think of the far-reaching consequences of settling boundary line disputes without regard to the record title. I vote to vacate the judgment and remand for a new trial.