Judges: Walker
Filed Date: 2/21/1917
Status: Precedential
Modified Date: 10/19/2024
This is a proceeding brought to procession land and to determine the dividing line between lands of the parties, under Revisal, ch. 101, and it is so designated in the pleadings.
There was a verdict for the plaintiff, and from the judgment therein the defendant Ange appealed. The nature of a processioning proceeding has frequently been considered and decided by this Court. Its primary and leading purpose is to settle boundaries as between adjoining proprietors of land; but while this is the main object, the title to land may necessarily become the subject of inquiry, in order to ascertain the ultimate fact as to the true location of the boundary. In such proceedings, unless perhaps both parties claim under a paper title, it will be difficult if not impossible to confine the investigation required to the mere location of the dividing line. When both parties claim by right of possession, or one by a paper title and the other by adverse possession, it will become necessary in the large majority, if not all, of the cases to ascertain the nature and extent of the possession, and, even in the case of a claim under a paper title, the true location of corners and of boundaries, as preliminary to the location of the dividing line which is in dispute. So that it may, speaking generally, be safely said that the title to the land is not involved in such a proceeding; but that means that it is not directly involved, for in many cases, as we have already shown, it may become incidentally one of the questions or issues in the case, which must be decided before the main issue as to the location of the dividing line can be determined. The case of partition proceedings is a similar one and illustrates the point, as shown in Woody v. Fountain, 143 N.C. at p. 69. There the question of title is not necessarily involved, but it may become necessary upon a plea of sole (27) seizin to determine, first, how the parties stand with reference to the title before deciding whether they are tenants in common and *Page 69 entitled to partition. It is a preliminary question which must be settled before the relief prayed can be granted.
A partition proceeding will very often run into an action of ejectment, and the same may be said of a processioning proceeding. In the latter case the ownership of the land on either side of the alleged disputed line, which is a prerequisite to the right of having the land processioned, cannot always be determined by mere occupancy, but often will require an investigation of the title, as in other cases where the issue is not primarily involved. The failure to note this distinction between a proceeding where the location of a line is solely involved and one where the title may incidentally arise has caused the question in this appeal to be presented and the Court to be misunderstood. We have held in numerous decisions that the question of title may be raised by the pleadings or by the facts of the particular case. Parker v. Taylor,
The judge was also correct in stating that the testimony of the surveyor as to the true line did not necessarily establish it, but was only evidence of it, and the same is true as to the conduct of the parties with reference to the lane.
There is no error that we can find in the case which warrants a new trial.
No error.
Cited: Exum v. Chase,