{ "id": 8552645, "name": "H. P. SMOTHERS, JR., and Wife, TILLIE SMOTHERS; J. RALPH PELL ane Wife, JEWEL PELL; W. B. HULL and Wife, RACHEL HULL; and GEORGE B. REID and Wife, ANNE P. REID, Petitioners, v. ANDREW J. SCHLOSSER, JR., and Wife, ANGELINE SCHLOSSER; and WILLIAM J. SCHLOSSER and Wife, RACHEL SCHLOSSER, Respondents", "name_abbreviation": "Smothers v. Schlosser", "decision_date": "1968-09-18", "docket_number": "No. 6818SC342", "first_page": "272", "last_page": "282", "citations": [ { "type": "official", "cite": "2 N.C. App. 272" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "84 S.E. 2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600285 ], "opinion_index": 0, "case_paths": [ "/nc/241/0024-01" ] }, { "cite": "113 A.L.R. 421", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "94 S.E. 685", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "175 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657125 ], "opinion_index": 0, "case_paths": [ "/nc/175/0067-01" ] }, { "cite": "2 S.E. 378", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "97 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649648 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/97/0172-01" ] }, { "cite": "168 S.E. 217", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616085 ], "opinion_index": 0, "case_paths": [ "/nc/204/0274-01" ] }, { "cite": "117 N.C. 15", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652363 ], "opinion_index": 0, "case_paths": [ "/nc/117/0015-01" ] }, { "cite": "76 S.E. 821", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "161 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269989 ], "opinion_index": 0, "case_paths": [ "/nc/161/0198-01" ] }, { "cite": "62 S.E. 426", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "148 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270125 ], "opinion_index": 0, "case_paths": [ "/nc/148/0378-01" ] }, { "cite": "69 A.L.R. 1433", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "113 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618784 ], "opinion_index": 0, "case_paths": [ "/nc/252/0097-01" ] }, { "cite": "35 S.E. 2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612651 ], "opinion_index": 0, "case_paths": [ "/nc/225/0535-01" ] }, { "cite": "67 S.E. 2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623932 ], "opinion_index": 0, "case_paths": [ "/nc/234/0506-01" ] }, { "cite": "94 S.E. 2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219454 ], "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0422-01" ] }, { "cite": "24 S.E. 2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632173 ], "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0701-01" ] }, { "cite": "136 S.E. 2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566471 ], "opinion_index": 0, "case_paths": [ "/nc/262/0212-01" ] }, { "cite": "149 S.E. 2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560525 ], "opinion_index": 0, "case_paths": [ "/nc/267/0701-01" ] } ], "analysis": { "cardinality": 852, "char_count": 25257, "ocr_confidence": 0.534, "pagerank": { "raw": 7.747644260677764e-08, "percentile": 0.45546246132496526 }, "sha256": "8b0b69cd501ebbaec21673a3c18ffd9c80a5edfa7919e63cf3afa2c82e92a93b", "simhash": "1:a1ebb49aa74783cc", "word_count": 4398 }, "last_updated": "2023-07-14T19:15:57.624547+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Campbell and MoRRis, JJ., concur." ], "parties": [ "H. P. SMOTHERS, JR., and Wife, TILLIE SMOTHERS; J. RALPH PELL ane Wife, JEWEL PELL; W. B. HULL and Wife, RACHEL HULL; and GEORGE B. REID and Wife, ANNE P. REID, Petitioners, v. ANDREW J. SCHLOSSER, JR., and Wife, ANGELINE SCHLOSSER; and WILLIAM J. SCHLOSSER and Wife, RACHEL SCHLOSSER, Respondents" ], "opinions": [ { "text": "Mallard, C.J.\nIn the record filed herein the petitioners are sometimes referred to as plaintiffs and the respondents are sometimes referred to as defendants.\nRespondents took fifty-three exceptions and group them in ten assignments of error. In their brief respondents assert that only two questions are presented; one, that the trial judge failed \u201cto apply the correct rules of boundary law\u201d and the other, that the trial judge failed to find \u201cas a matter of law\u201d that the disputed boundary line between the parties is that contended by respondents.\nIn Coley v. Telephone Co., 267 N.C. 701, 149 S.E. 2d 14, Justice Bobbitt, speaking for the Court, said:\n\u201cThe 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, and cases cited. \u2018What constitutes the line, is a matter of law; where it is, is a matter of fact.\u2019 McCanless v. Ballard, 222 N.C. 701, 703, 24 S.E. 2d 525; Jenkins v. Trantham, 244 N.C. 422, 426, 94 S.E. 2d 311.\nThe burden of proof rests upon the petitioner to establish the true location of a disputed boundary line. Plemmons v. Cutshall, 234 N.C. 506, 67 S.E. 2d 501; McCanless v. Ballard, supra. \u2018If 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.\u2019 Cornelison v. Hammond, 225 N.C. 535, 35 S.E. 2d 633, and cases cited.\u201d\nIn this case it appears that the parties have attempted to use a diagram drawn on a blackboard, admitted for illustrative purposes, in lieu of a proper map. A photocopy of this diagram, marked exhibit \u201cX\u201d, is in the exhibits filed here. The stipulation was that it was to be used for illustrative purposes and was not \u201cintended to reflect, except roughly, courses, distances, angles and other details, . . .\u201d There are no courses or distances marked on this diagram. Letters were placed on the blackboard to indicate corners shown thereon. There is no map in this record accurately showing the contentions of the parties. There is nothing else in this record with appropriate letters thereon, as used in the transcript by the witnesses and the attorneys, to which we can refer. A \u201cmap\u201d is referred to by the witnesses without identifying what \u201cmap.\u201d It appears that the lawyers, witnesses and court were referring to the blackboard diagram as a map. However, we are, from this record, unable to determine with accuracy to what they were referring.\nPetitioners\u2019 exhibit #1 is a map by R. D. Trogdon, dated 9 November 1951, and shows the boundary line between the parties to be a straight line running South 88\u00b0 26' 15\" West.\nSome of the petitioners and the predecessors in title of the other petitioners sold to respondents the 1.8-acre tract described in petitioners\u2019 exhibit #2, which is a deed dated 9 November 1951, and this deed calls for the south line thereof to run with grantors\u2019 southern line South 88\u00b0 26' 15\" West 210 feet. This 1.8-acre tract is a part of the lands conveyed to petitioners\u2019 predecessors in title as described in respondents\u2019 exhibit #4.\nRespondents\u2019 exhibit #1, which is a deed from R. J. Harris et ux to P. 0. Wilson et ux, dated 16 February 1950, calls for the boundary line between the parties to run North 85\u00b0 30' West.\nRespondents\u2019 exhibit #2, duplicated by respondents\u2019 exhibit #5, is a deed from petitioners H. P. Smothers, Jr., et ux to petitioners W. B. Hull et ux and is dated 23 April 1955. It calls for the boundary line between the parties (which is described as the \u201coriginal Kirkman line\u201d) to run North 85\u00b0 30' West.\nRespondents\u2019 exhibit #3 is a drawing having a legend located in the northwest comer thereof indicating that it was prepared by Moore, Gardner and Associates, Inc., Consulting Engineers. The pointer presumably indicating North on this drawing is pointed toward the bottom thereof instead of toward the top. This drawing has, among other things, two lines beginning at the same unidentified point located somewhere East of South Elm Street. One of these lines is designated, \u201cLine Surveyed by Trulove Engineers, Inc.,\u201d and it is shown thereon that it runs from the unidentified point situated in an unidentified line South 88\u00b0 50' 30\" East for an undisclosed distance to another unidentified point located at an undisclosed distance East of South Elm Street. The other line beginning at the same unidentified point as the line just described is designated, \u201cLine surveyed by Southern Mapping & Engineering Co./\u2019 and it is shown thereon that it runs North 88\u00b0 20' 45\" East for an undisclosed distance to another unidentified point located an undisclosed distance East of South Elm Street.\nThis map or drawing does not attempt to show the lands of the parties, does not show their contentions, and has no lettering thereon designating corners, A court map should show the lands of and the contentions of the parties as to the location of the disputed boundary. While G.S. 38-4 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.\nThere is no map marked as a court map in this record. If, as stated by one of the respondents\u2019 attorneys on oral argument, the respondents\u2019 exhibit #3 is intended to be such a \u201cmap,\u201d it is entirely inadequate in that it does not set out the contentions of the parties and it is lacking or deficient in other details referred to above.\nIn 2 Strong, N. C. Index 2d, Boundaries, \u00a7 2, we find the following general rule stated with respect to inconsistent calls:\n\u201cWhere the calls are inconsistent, the general rule is that calls to natural objects control courses and distances. A call to a wall, or to another\u2019s line, if known or established, is a call to a monument within the meaning of this rule, as is a call to a highway. (emphasis added)\nA call to a natural object which is permanently located controls course and distance, and a well-recognized comer of an adjacent tract is a call to a natural object within the meaning of this rule.\u201d\nIn 2 Strong, N. C. Index 2d, Boundaries, \u00a7 6, we find the following general rule stated with respect to the calls in junior and senior deeds:\n\u201cWhere a junior deed calls for a comer or line in a prior deed as the dividing line between the adjoining tracts, the dividing line must be located from the description in the prior deed, even to the extent of reversing a call in such prior deed when necessary, before resort may be had to any call in the junior deed, and in such circumstances the question of lappage cannot arise. The correct boundaries can be established only by surveying the senior conveyance*.\nWhere a deed calls for the comer of an adjacent tract as the beginning point, such deed is the junior deed notwithstanding the fact that the deeds to both tracts, from a common source, bear the same date.\u201d\nRespondents\u2019 exhibit #4 is a deed dated 12 January 1960 from Victor E. Kirkman to R. J. Harris and P. 0. Wilson recorded in Book 1306, page 406. It is clear, in applying the foregoing principles of law, that the boundary line between the parties, unless changed in some lawful manner, is the South line in this deed (Res. Exh. #4), provided this line can be established. Respondents\u2019 exhibit #4 is the senior deed. The deed to the respondents from E. D. Yost and wife dated 13 July 1951, introduced into evidence as respondents\u2019 exhibit #7, is the junior deed calling for the Kirkman line as its North boundary line and has as its beginning corner the southwest comer of V. Kirkman in the eastern margin of South Elm Street. The South line of the Kirkman deed (Res. Exh. #4) runs from the southeast comer North 85\u00b0 30' West 758 feet to a stake in the eastern margin of South Elm Street Extension. The North line of respondents\u2019 tract is \u201cBeginning at an iron pipe in the eastern margin of South Elm Street V. Kirkman\u2019s Southwest Corner, and running thence with said Kirkman\u2019s South line South 88\u00b0 59' East 741.88 feet to an iron rod, Kirkman\u2019s southeast corner; . . .\u201d (emphasis added) It is clear from the courses of these two lines in these two deeds that the boundary line between the parties is a straight line, beginning at Kirkman\u2019s southeast corner and extending to the eastern margin of South Elm Street. Although the courses in the two deeds are different, the parties agree that their common corner is the southeast comer of the Kirkman tract and that they are in agreement as to where it is on the ground. But they disagree as to the location of the southwest comer of the Kirkman tract and the connecting line between the two comers. There are five different courses called for in different instruments as to the course of the boundary line between the parties.\nThe parties stipulate:\n\u201c(1) That the illustrative diagram herein designated as Exhibit 'X\u2019 is an accurate representation of the blackboard diagram used for illustrative purposes in the trial of this action.\n(2) That the diagram is not drawn to scale and is not intended to reflect, except roughly, courses, distances, angles and other details, but is intended to illustrate the general relative positions of points and comers referred to in the testimony.\n(3) That point O, an iron rod, is the southeast comer of the Kirkman land, is the southeast comer of the land conveyed by Kirkman to Harris and Wilson by deed recorded in Book 1306, page 405, which is Respondents\u2019 Exhibit #4, and is the southeast comer of the 1.8-acre tract conveyed by Harris and Wilson and Pell and Reid to Schlosser by deed recorded in Book 1442, page 453, which is Petitioners\u2019 Exhibit #2.\n(4) That point E, an iron stake, is the northeast corner of said 1.8-acre tract, and is in the east line of the Kirkman land and in the east line of the land conveyed by Kirkman to Harris and Wilson by the deed above mentioned, Exhibit #4.\n(5) That the line 0 to D is the Petitioners\u2019 contention as to the true dividing line, and line 0 to C is the Respondents\u2019 contention as to the true dividing line.\"\nIt should be noted that there is no substantive evidence in this record using letters therein or thereon to which the stipulations designated by letters can apply. In fact, the only exhibit containing a line or lines marked \u201c0 to D\u201d and \u201c0 to C\u201d is the blackboard diagram. This was received for illustrative purposes. We are unable to determine from this record to what these stipulations refer. Respondents state in their brief that:\n\u201cReference by alphabetical letters to lines and corners are to the illustrative diagram designated Exhibit \u2018X\u2019, which is a reproduction of the blackboard diagram used in the trial.\u201d\nIt appears from the evidence and stipulations in this case that the southeast corner of the Kirkman land, the southeast corner of the land conveyed by Kirkman to Harris and Wilson by deed recorded in Book 1306, page 405, which is respondents\u2019 exhibit #4, and the southeast corner of the 1.8-acre tract conveyed by Harris and Wilson and Pell and Reid to Schlosser by deed recorded in Book 1442, page 453, which is petitioners\u2019 exhibit #2, is a known admitted comer.\nThe parties have by stipulation agreed that point \u201cE\u201d on exhibit \u201cX\u201d, the blackboard diagram, is an iron stake and is the northeast comeir of the 1.8-acre tract, and that it is in the east line of the Kirkman land and in the east line of the land conveyed by Kirkman to Harris and Wilson by respondents\u2019 exhibit #4. This appears to be, from this record, a contradictory stipulation inasmuch as the east line of the 1.8-acre tract, as shown on petitioners\u2019 exhibits \u20211 and #2, runs South 00\u00b0 24' 05\" East from the northeast comer thereof to the known and stipulated southeast comer, and the East line in respondents\u2019 exhibit #4 runs a different course, to wit, South 03\u00b0 28' West to the same known and stipulated southeast comer. Petitioners exhibit #2 is dated 9 November 1951, and respondents\u2019 exhibit #4 is dated 12 January 1950. The East line of the \u201cKirkman land\u201d is not separately identified in the stipulation other than' as it may be referred to in the exhibits above mentioned. We are of the opinion and so decide that these contradictory stipulations would have the effect of nullifying each other. Respondents\u2019 exhibit #6, which was not admitted in evidence, purports to show the contentions of the parties by the use of internal angles instead of courses. However, the beginning point for the determination of these angles in each instance is the same East line and thus apparently does not take into account the differences in the location of and courses of these lines as shown in petitioners\u2019 exhibits #1 and #2 and respondents\u2019 exhibit #4.\nThe condition of this record in the failure to have a map is such that we are unable to rule on many of the exceptions to the evidence because of our inability to ascertain to what the evidence relates.\nThe petitioners assert that the boundary line between the parties, as they contend for, is an agreed line, or one established by estoppel nr acquiescence. The judge in entering the judgment found \u201c(t)hat the respondents, in accepting the deed for the 1.8-acre tract of land dated November, 1951, and recorded in Book 1442, page 453, with the southern boundary described therein and made pursuant to the Trogdon plat, agreed that the bearing on said southern boundary constituted the true dividing line between the parties and they are therefore estopped to deny that the dividing line between the parties is the line as set out in said deed.\u201d\nPetitioners excepted to this finding on the grounds that there was no evidence thereof in this record. Since the case must go back for a new trial, and in view of the record herein, we do not decide the question as to whether there was competent evidence to support such a finding. The applicability of this principle of law is not properly presented by this record on appeal. However, in discussing the question of the fixing of boundary lines by parol agreement, Chief Justice Parker said for the Court in Andrews v. Andrews, 252 N.C. 97, 113 S.E. 2d 47:\n\u201cA multitude of jurisdictions hold that an uncertain and disputed boundary line may, under certain circumstances, be fixed permanently by parol agreement, if accompanied by sufficient acquiescence and possession, but where there is no .uncertainty as to the boundary line, a parol agreement fixing a boundary line in disregard of those fixed by the deeds is void -under the Statute of Frauds, as it amounts to a conveyance of land by parol. 11 C.J.S., Boundaries, Sec. 67; 8 Am. Jur., Boundaries, Sec. 73; Tiffany Real Property, 3rd Ed., Sec. 653; Annotation 69 A.L.R. 1433. This general rule of law invoked by respondent is not applicable to the facts here, and it is not necessary for us to decide as to whether or not it is in conflict with some of our decisions, for the reason that here there is no uncertainty as to what the true boundary line is, and its true location on the premises can be fixed by the deeds and a survey.\nThis Court said in Haddock v. Leary, 148 N.C. 378, 62 S.E. 426: \u2018For nothing is better settled in this State than that if the calls of a deed are sufficiently definite to be located by extrinsic evidence, the location cannot be changed by parol agreement, unless the agreement was contemporaneous with the making of the deed.\u2019\nThis Court said in Kirkpatrick v. McCracken, 161 N.C. 198, 76 S.E. 821: \u2018Where a division line between tracts of land is well ascertained, and can be located by the plain and unambiguous calls of the deed, the acts and admissions of the parties claiming the respective tracts are not competent evidence, either to change the line or to estop the party from setting up the true line. Shaffer v. Gaynor, 117 N.C. 15. But where the dividing line is in dispute, and is unfixed and uncertain, the acts and admissions of the adjoining proprietors recognizing a certain line as the proper division line is evidence competent to be submitted to the jury.\u2019\n\u2018If the calls in a deed are sufficiently definite to be located by extrinsic evidence, the location cannot be changed by parol agreement unless the agreement was contemporaneous with the making of the deed.\u2019 Daniel v. Power Co., 204 N.C. 274, 168 S.E. 217.\nThe true principle is laid down by Smith, C.J., in laconic language in Davidson v. Arledge, 97 N.C. 172, 2 S.E. 378: \u2018The rejected evidence would have been competent to fix an uncertain and controverted boundary, but not to change that made in the deed that distinctly defines it.\u2019\nWiggins v. Rogers, 175 N.C. 67, 94 S.E. 685, was an action brought to recover a parcel of land the ownership of which depended on the true location of the dividing line between adjoining landowners. The Court said: \u2018Plaintiff proposed to show that the line had been run some years before the time of the trial by Posey Hyde, and that the respective owners had recognized it as the line of division between them for many years. This evidence was excluded by the Court, but we think it was competent, not to change the boundaries of the land (Davidson v. Arledge, 97 N.C. 172), or, in other words, to show that the parties had orally agreed upon a line different from the true line, but as some evidence to prove where was the true line.\u2019 \u201d\nFor more on the establishment of a boundary line by oral agreement or acquiescence, see 113 A.L.R. 421.\nAfter hearing the evidence and making extensive findings of fact, the judge concluded as a matter of law that:\n\u201c(T)he disputed boundary line is located as contended by the petitioners, which is described as follows:\nBEGINNING at a point which is South 88 deg. 26' 15\" West, 210 feet from an iron stake at the southeast comer of the 1.84-acre tract above referred to, and continuing from said beginning point South 88 deg. 26' 15\" West to the eastern margin of South Elm Street.\u201d (emphasis added)\nThere is no 1.84-acre tract of land mentioned in the judgment or in the record, and hence \u201cabove referred to\u201d means nothing.\nThereupon, it was adjudged that the common boundary between the parties was located:\n\u201cBeginning at a point which is located South 88 deg. 26' 15\" West 210 feet from an iron stake, the southeast corner of the 1.84-acre tract conveyed by Pell et al to Schlosser, et al, by deed recorded in Book 1442, page 453, in the Guilford County Registry; and running from said beginning point South 88 deg. 20' 45\u201d West to the eastern margin of South Elm Street.\u201d (emphasis added)\nThis description is different from the description of the location of the boundary line appearing in the conclusions of law as set out in this judgment. Thus, the two descriptions of the location of the boundary line in the judgment are inconsistent. The judgment is ambiguous and is not supported by the record insofar as it attempts to change the boundary line from one straight line extending from the known and agreed southeast corner of the Kirkman land to South Elm Street.\n\u201cWhere a judgment remains ambiguous after resort to the pleadings and record to ascertain its meaning, and is not supported by the record, a new trial will be awarded.\u201d 5 Strong, N. C. Index 2d, Judgments, \u00a7 4.\nThe parties would be well advised, before this case is tried again, to have one map made showing the location of the lands of the petitioners and the respondents as well as the location of the boundary-line between them as contended for by each1 of the parties. Perkins v. Clarke, 241 N.C. 24, 84 S.E. 2d 251.\nIn view of the contradictions in the stipulations, the condition of the record as set forth herein, and the contradictions in the location of the line as set out in the judgment, a new trial is ordered. We do not deem it necessary to discuss other exceptions of the respondents, some of which may have merit but may not occur on a new trial.\nThe judgment of the Superior Court is reversed, and a new trial is awarded.\nReversed.\nCampbell and MoRRis, JJ., concur.", "type": "majority", "author": "Mallard, C.J." } ], "attorneys": [ "Douglas, Ravenel, Hardy & Crihfield by R. D. Douglas, Jr., and Norman \u25a0& Reid by William G. Reid for petitioner appellees.", "Hoyle, Boone, Dees & Johnson by T. C. Hoyle, Jr., and Harry Rockwell for respondent appellants." ], "corrections": "", "head_matter": "H. P. SMOTHERS, JR., and Wife, TILLIE SMOTHERS; J. RALPH PELL ane Wife, JEWEL PELL; W. B. HULL and Wife, RACHEL HULL; and GEORGE B. REID and Wife, ANNE P. REID, Petitioners, v. ANDREW J. SCHLOSSER, JR., and Wife, ANGELINE SCHLOSSER; and WILLIAM J. SCHLOSSER and Wife, RACHEL SCHLOSSER, Respondents\nNo. 6818SC342\n(Filed 18 September 1968)\nI. Boundaries \u00a7\u00a7 8, 9\u2014 processioning proceeding\nThe sole purpose of a processioning proceeding is to establish the true location of a boundary line; what constitutes the line is a matter of law, and where it is located is a matter of fact.\n3.Boundaries \u00a7 8\u2014 processioning proceeding \u2014 burden of proof\nThe burden of proof rests upon the petitioner in a processioning proceeding to establish the true location of the disputed boundary line.\n3. Evidence \u00a7 35; Boundaries \u00a7 13\u2014 contents of court maps\nA court map in a processioning proceeding should show the lands involved and the contentions of the parties as to the location of the disputed boundary.\n4. Boundaries \u00a7 14\u2014 boundary disputes \u2014 survey of lands involved\nWhile G.S. 38-4 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.\n5. Boundaries \u00a7 3\u2014 inconsistent calls \u2014 which call controls\nWhere calls are inconsistent, a call to a natural object controls course and distance; a call to another\u2019s line or to a well-recognized corner of an adjacent tract is'a call to a natural object within the meaning of this rule.\n8. Boundaries \u00a7 6\u2014 disputed boundary \u2014 junior and senior deeds\nWhere a junior deed calls for a corner or line in a prior deed as the dividing line between the adjoining tracts, the dividing line must be located from the description in the prior deed before resort may be had to any call in the junior deed.\n7. Boundaries \u00a7 6\u2014 junior and senior deeds\nWhere a deed calls for the corner of an adjacent tract as the beginning point, such deed is the junior deed notwithstanding the deeds are from a common source and bear the same date.\n8. Tidal \u00a7 6\u2014 contradictory stipulations\nContradictory stipulations nullify each other.\n9. Boundaries \u00a7 15; Judgments \u00a7 4\u2014 boundary dispute \u2014 ambiguous judgment \u2014 new trial\nWhere the judgment in a processioning proceeding contains inconsistent conclusions as to the description of the disputed boundary line, and the description of the adjudged boundary line is not supported by the record, a new trial will be awarded.\nAppeal by respondents from Bowman, S.J., 1 April 1968 Non-Jury Session of Superior Court of GuilfoRD County.\nIn this processioning proceeding the petitioners alleged, and the respondents admitted, that there was a dispute concerning the location of the boundary line between a tract of land owned by the petitioners and a tract owned by the respondents.\nPetitioners allege that they are .the owners of a \u201ccertain tract of land lying and being in the City of Greensboro, County of Guilford, and State of North Carolina, and described as follows:\n\u201cBEGINNING at a point in the intersection of the center lines of South Elm Street and Meadowview Road and running with the center line of Meadowview Road South 89 degrees 27 minutes 20 seconds East 566.82 feet to a point; thence South 00 degrees 24 minutes 00 seconds East 817.56 feet to an iron stake in the respondents\u2019 line; thence South 88 deg. 26' 15\" West 516.35 feet to the center line of South Elm Street; thence with the center line of South Elm Street North 1 deg. 29r 15\" West 837.72 feet to the point of beginning.\u201d\nPetitioners alleged, and respondents admitted, that the disputed boundary line is the southern line of the petitioners\u2019 land and the northern line of the respondents\u2019 land. Petitioners alleged in substance that the boundary line between the two tracts has been established as described in paragraph seven of their amended petition by deed, estoppel, acquiescence or agreement. Respondents assert that the boundary line between them is the Kirkman line as described in a deed from Victor E. Kirkman to petitioners\u2019 predecessors in title, R. J. Harris and P. O. Wilson, dated 12 January 1950 and recorded in Guilford County Registry in Book 1306, page 405. Petitioners contend that the description in this deed to them is in error and that the foregoing is the correct description of their land. Petitioners and respondents agree that the southeast corner of this \u201cKirkman\u201d tract of land is their common corner and that there is no dispute about where this comer is located on the ground. The controversy arises over the direction the line takes as it extends to the eastern margin of South Elm Street Extension.\nFrom an adverse judgment rendered by the Clerk of the Superior Court, the respondents appealed to the Superior Court for trial de novo as provided in G.S. 38-3 (b).\nA jury trial was waived. After a hearing, the court made findings of fact, conclusions of law, and signed judgment in favor of the petitioners. Respondents excepted and appealed to the Court of Appeals.\nDouglas, Ravenel, Hardy & Crihfield by R. D. Douglas, Jr., and Norman \u25a0& Reid by William G. Reid for petitioner appellees.\nHoyle, Boone, Dees & Johnson by T. C. Hoyle, Jr., and Harry Rockwell for respondent appellants." }, "file_name": "0272-01", "first_page_order": 292, "last_page_order": 302 }