{
  "id": 8527151,
  "name": "JAMES K. CARSON and wife, BELINDA McCALL CARSON v. LEE REID",
  "name_abbreviation": "Carson v. Reid",
  "decision_date": "1985-08-06",
  "docket_number": "No. 8429SC878",
  "first_page": "321",
  "last_page": "324",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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  "last_updated": "2023-07-14T20:46:57.071049+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judge Arnold concurs.",
      "Judge Phillips dissents."
    ],
    "parties": [
      "JAMES K. CARSON and wife, BELINDA McCALL CARSON v. LEE REID"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nPetitioners filed an action pursuant to Chapter 38 of the North Carolina General Statutes seeking to establish the boundary line between their property and the property of respondent. The trial court, sitting without a jury, found that the petitioners had failed to prove the existence of the boundary line as contended in the petition and entered judgment for respondent. From that judgment the petitioners appeal, contending the court erred in receiving, considering, and basing judgment upon opinion evidence from respondent\u2019s expert witness on where the boundary line ran. We reverse and order a new trial.\nThis dispute arose in the fall of 1981 when petitioners began construction of a house on property which had been deeded to them by their parents, who had acquired the land from Cecil Robinson. Respondent informed petitioners that the house was being built on property he had acquired in 1951 from the heirs of L. E. Reese, the original common owner of both properties. Respondent contends the boundary separating his property from petitioners\u2019 property is north of the house, which would place the house constructed by petitioners on respondent\u2019s land. Petitioners contend the boundary is south of the house, placing the house on petitioners\u2019 land.\nDuring the course of the trial, respondent\u2019s surveyor, Perry Raxter, was permitted to testify, over petitioners\u2019 objections, that he had located some of the \u201ccorners\u201d of the tracts in question. During the course of his testimony, the following transaction occurred, again over petitioners\u2019 objection:\nQuestion: \u201cDoes that line, in your opinion, accurately represent the dividing line between the two grants?\u201d\nCounsel for Petitioners: \u201cObjection, Combs v. Woodie; he may not express an opinion.\u201d\nThe Court: \u201cOverruled.\u201d\nThe Witness: \u201cYes, Sir.\u201d\nIn its judgment, the trial court found as fact:\n5. That Perry Raxter, a registered land surveyor, testified that he located the southwest corner of Grant No. 12122 and the northwest corner of Grant No. 10879 on the ground in an actual survey, and that said corner is presently memorialized by a hickory. Said hickory appears on his plat.\nIn its conclusions of law, the trial court stated:\n3. That said (boundary) line was located on the ground by Raxter, and runs between a hickory and a white oak.\nThe court then ordered:\nBased on the foregoing conclusions of law, it is ordered, adjudged and decreed that the true boundary line between the tracts of petitioners and respondent is hereby declared to be the solid blue line shown on the northern boundary of the Lee Reid tract on the plat prepared by Perry R. Raxter, RLS.\nWhere the trial judge serves as the trier of fact, our scope of review is limited. \u201cThe trial court\u2019s findings of fact have the force and effect of a verdict by jury and are conclusive on appeal if there is evidence to support them, even though evidence might sustain findings to the contrary.\u201d Dixon v. Kinser, 54 N.C. App. 94, 96, 282 S.E. 2d 529, 531, disc. rev. denied, 304 N.C. 775, 288 S.E. 2d 805 (1981). Our review of the record before us reveals no competent evidence to support the court\u2019s findings.\nIt is well established in this State that a land surveyor, even as an expert witness, cannot give his opinion as to where a true boundary is. \u201cWhere the true boundary is is a question of fact for the jury. What the boundary is is a question of law for the court .... That the surveyor may not give his opinion as to where the boundary is was early declared to be the rule in this jurisdiction in Stevens v. West, 51 N.C. 49 (1858).\u201d Combs v. Woodie, 53 N.C. App. 789, 790, 281 S.E. 2d 705, 706 (1981). Thus, it was error for the court to allow Raxter\u2019s testimony on where the boundary line runs. However, in a trial by the court sitting as factfinder, \u201cwe presume that the trial judge disregards incompetent evidence. [Citation omitted.] On appeal, it must be shown that the trial judge was affirmatively influenced by the incompetent matter to justify a finding of prejudicial error.\u201d Spencer v. Spencer, 70 N.C. App. 159, 167, 319 S.E. 2d 636, 643 (1984).\nIt is clear from the judgment below that the trial court was affirmatively influenced by the incompetent opinion testimony of the expert surveyor. In declaring as a conclusion of law that the boundary \u201cline was located on the ground by Raxter and runs between a hickory and a white oak,\u201d the trial judge based the resolution of the ultimate issue not on his own findings, but rather on the incompetent testimony alone. In our review of the record before us, we find no other evidence upon which the court could have made the disputed finding of fact and conclusion of law on where the boundary runs. Thus, the trial court\u2019s error was prejudicial and the petitioner is entitled to a new trial.\nNew trial.\nJudge Arnold concurs.\nJudge Phillips dissents.",
        "type": "majority",
        "author": "COZORT, Judge."
      },
      {
        "text": "Judge Phillips\ndissenting.\nI dissent. In my view the line that Judge Snepp found is supported by competent evidence and I vote to affirm. The monuments that the line follows as a matter of course were established by competent testimony that was not objected to.",
        "type": "dissent",
        "author": "Judge Phillips"
      }
    ],
    "attorneys": [
      "Ramsey and Cilley by Robert S. Cilley for petitioner appellants.",
      "Jack H. Potts and Paul B. Welch, III, for respondent ap-pellee."
    ],
    "corrections": "",
    "head_matter": "JAMES K. CARSON and wife, BELINDA McCALL CARSON v. LEE REID\nNo. 8429SC878\n(Filed 6 August 1985)\nBoundaries \u00a7 14\u2014 surveyor\u2019s opinion of boundary location \u2014 improperly admitted\nThe trial court erred in a boundary dispute by allowing a surveyor to testify as to where the boundary line ran, and the error was prejudicial because there was no other evidence upon which the trial court, sitting without a jury, could have made the finding of fact and conclusion of law on where the boundary ran.\nJudge Phillips dissenting.\nAPPEAL by petitioners from Snepp, Judge. Judgment entered 19 April 1984 in Superior Court, TRANSYLVANIA County. Heard in the Court of Appeals 16 April 1985.\nRamsey and Cilley by Robert S. Cilley for petitioner appellants.\nJack H. Potts and Paul B. Welch, III, for respondent ap-pellee."
  },
  "file_name": "0321-01",
  "first_page_order": 355,
  "last_page_order": 358
}
