{
  "id": 8554998,
  "name": "LILLIE S. MATHIAS and GLADYS M. TAYLOR v. EDWARD A. BRUMSEY and wife, EVELYN BRUMSEY",
  "name_abbreviation": "Mathias v. Brumsey",
  "decision_date": "1975-11-19",
  "docket_number": "No. 751SC480",
  "first_page": "558",
  "last_page": "561",
  "citations": [
    {
      "type": "official",
      "cite": "27 N.C. App. 558"
    }
  ],
  "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": "155 S.E. 2d 519",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1967,
      "opinion_index": 0
    },
    {
      "cite": "271 N.C. 165",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8562844
      ],
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/nc/271/0165-01"
      ]
    },
    {
      "cite": "61 S.E. 2d 603",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1950,
      "opinion_index": 0
    },
    {
      "cite": "232 N.C. 537",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8608836
      ],
      "year": 1950,
      "opinion_index": 0,
      "case_paths": [
        "/nc/232/0537-01"
      ]
    },
    {
      "cite": "103 S.E. 2d 807",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1958,
      "pin_cites": [
        {
          "page": "811"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "248 N.C. 517",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8624572
      ],
      "year": 1958,
      "pin_cites": [
        {
          "page": "522"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/248/0517-01"
      ]
    },
    {
      "cite": "61 S.E. 2d 356",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1950,
      "pin_cites": [
        {
          "page": "357"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "232 N.C. 492",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8606744
      ],
      "year": 1950,
      "pin_cites": [
        {
          "page": "493"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/232/0492-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 365,
    "char_count": 6798,
    "ocr_confidence": 0.566,
    "pagerank": {
      "raw": 2.423601132469615e-07,
      "percentile": 0.8012592626056577
    },
    "sha256": "9420562847be774237e1415c7eb5be21f4aa3a413ee22d7b9e31abc5ef9999d4",
    "simhash": "1:c6f550be02b5a0db",
    "word_count": 1178
  },
  "last_updated": "2023-07-14T22:44:36.927205+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Morris and Hedrick concur."
    ],
    "parties": [
      "LILLIE S. MATHIAS and GLADYS M. TAYLOR v. EDWARD A. BRUMSEY and wife, EVELYN BRUMSEY"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nOne assignment of error is raised for consideration by this Court. Defendants contend that the trial court committed reversible error by adopting the report of the Referee and disposing of the case without a jury trial. Plaintiff argues that the defendants waived their right to a jury trial by failing to except to the Referee\u2019s crucial finding of fact regarding the location, of the boundary line, and by failing to tender an issue of fact with their exceptions to the report of the Referee.\nThe North Carolina Constitution, Article I, Section 25 provides: \u201cIn all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.\u201d The North Carolina Supreme Court, articulating the extent to which the right to a jury trial should be applied in a civil action involving title to real property, held: \u201cThe Constitution of North Carolina guarantees to every litigant the \u2018sacred and inviolable\u2019 right to demand a trial by jury of the issues of fact arising \u2018in all controversies respecting property,\u2019 and he cannot be deprived of his right except by his own consent.\u201d Sparks v. Sparks, 232 N.C. 492, 493, 61 S.E. 2d 356, 357 (1950).\nThe right to a jury trial is a substantial right of great significance. \u201cIt is a general rule, since the right of trial by jury is highly favored, that waivers of the right are always strictly construed and are not to be lightly inferred or extended by implication, whether with respect to a civil or criminal case. There can be no presumption of a waiver of trial by jury where such a trial is provided for by law. Thus, in the absence of an express agreement or consent, a waiver of the right to a jury trial will not be presumed or inferred. Indeed, every reasonable presumption should be made against its waiver.\u201d In re Gilliland, 248 N.C. 517, 522, 103 S.E. 2d 807, 811 (1958).\nPlaintiff correctly argues that the underlying issue of fact for determination in this matter is the location of the true boundary line. She contends that there can be no jury trial on this question because defendants failed to except to the Referee\u2019s determination of the location of the boundary line, and that in the absence of exceptions thereto the findings of. fact by the Referee are conclusive.\nIt is specifically alleged by plaintiff that defendants waived their right to jury trial on the issue of determining the location of the true boundary line by failing to except to the Referee\u2019s Finding of Fact No. 20, which found that \u201cthe true boundary line between the lands of the plaintiff and the defendants is located and shown as extending from the letter \u2018T\u2019 to the letter \u2018P\u2019 on the Court Map.\u201d\nWhile the record indicates that defendants did not except to Finding No. 20, they did except to Finding No. 19, and to Conclusion of Law No. 1, made by the Referee. Conclusion of Law No. 1, that \u201cthe true boundary line between the lands of the plaintiff and the lands of the defendants is the line extending from the letter \u2018T\u2019 to the letter \u2018P\u2019 as shown on the Court Map,\u201d is virtually identical to Finding No. 20. Finding No. 19 also states that plaintiff\u2019s land borders defendants\u2019 land along the line from \u201cT\u201d to \u201cP\u201d on the Court Map. The same finding by the Referee appeared more than once in the report, and we hold that defendants\u2019 exceptions are sufficient to give plaintiff notice, and to present the issue in dispute to the Court.\nDefendants tendered the following issue for determination by the jury:\n\u201c1. What is the true dividing line between the lands of the plaintiff and the lands of the defendants as shown on the Court Map?\u201d\nPlaintiff contends that defendants have waived the right to jury trial by failing to submit a proper issue. She asserts that the issue as tendered by defendants presents no triable issue of fact, but instead presents a question of law. Citing Brown v. Hodges, 232 N.C. 537, 61 S.E. 2d 603 (1950), it is pointed out that what a boundary line is constitutes a question of law for the Court, and where a boundary line is constitutes a question of fact for the jury.\nIt is well established in North Carolina that the location of the boundaries on the ground is a factual question for the jury. The determination of what the boundaries are is a question of law for the court. Cutts v. Casey, 271 N.C. 165, 155 S.E. 2d 519 (1967).\nIn the instant case it is obvious that the underlying issue is the location of the true boundary line. It is evident that defendants made the wrong choice of interrogatives. However, the general rule as stated in Cutts v. Casey, supra, and Brown v. Hodges, supra, does not require a mechanical and technical application that defeats the purpose of the rule. Defendants are entitled to a jury trial on the issue of the location of the true boundary between their land and plaintiff\u2019s land.\nNew trial.\nJudges Morris and Hedrick concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "White, Hall, Mullen and Brumsey, by Gerald F. White and John H. Hall, for plaintiff appellee.",
      "Frank B. Ayeoek for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "LILLIE S. MATHIAS and GLADYS M. TAYLOR v. EDWARD A. BRUMSEY and wife, EVELYN BRUMSEY\nNo. 751SC480\n(Filed 19 November 1975)\n1. Boundaries \u00a7 8; Jury \u00a7 1\u2014 determination of boundary location \u2014 right to jury trial \u2014 no waiver\nDefendants did not waive their right to jury trial on the issue of determining the location of the true boundary line between the lands of the parties by failing to make exceptions to specified findings of fact by the referee where exceptions which defendant did make were sufficient to give plaintiff notice and to present the issue in dispute to the court.\n2. Boundaries \u00a7 9; Jury \u00a7 1\u2014 improperly worded issue \u2014 no waiver of jury trial\nThough defendants improperly worded the issue they submitted for jury determination, they did not thereby waive the right to a jury trial.\nAppeal by defendants from Alvis, Judge. Judgment entered 17 March 1975 in Superior Court, Currituck County. Heard in the Court of Appeals 23 September 1975.\nPlaintiff alleged that she was the owner of a contested strip of land and that defendants and their agents trespassed by cutting and removing timber. Defendants denied trespassing and asserted that they cut and removed timber only from land belonging to them.\nA Reference Hearing was ordered and the Referee essentially fohnd in favor of plaintiff. Defendants excepted to the Referee\u2019s report, demanded a jury trial, and tendered the issue: \u201cWhat is the true dividing line between the lands of the plaintiff and the lands of the defendants as shown on the Court Map?\u201d\nPursuant to G.S. 1A-1, Rule 53(g) (2), plaintiff thereafter moved for judgment adopting the Referee\u2019s report. From judgment granting plaintiff\u2019s motion the defendants appealed to this Court.\nWhite, Hall, Mullen and Brumsey, by Gerald F. White and John H. Hall, for plaintiff appellee.\nFrank B. Ayeoek for defendant appellant."
  },
  "file_name": "0558-01",
  "first_page_order": 586,
  "last_page_order": 589
}