#### H. G. NASH et al. v. J. T. SHUTE.

(Filed 23 November, 1921.)

1. Judgments — Estoppel—Courts—Jurisdiction.

Judgments may not operate as an estoppel as to such matters as extend beyond the jurisdiction of the court to determine the rights of the parties, though embraced within the scope of the pleadings and inquiry.

2. Same — Clerks of Court — Dividing Dine — Statutes—Easements.

The clerk of the Superior Court, under a statute controlling proceedings to determine a dividing line, has no jurisdiction as to title or character of the possession of the claimants on either side of the dividing line of lands authorized to be ascertained or determined by him under the provisions of C. S., 361 et seq., the occupancy alone being sufficient to confer jurisdiction, sec. 361; and where the clerk has acted within his jurisdiction in such proceedings, his judgment may not estop a party in a separate action to show the character or extent of his possession, or to establish an easement by adverse possession in the lands occupied by the other.

3. Judgments — Estoppel—Dands—Ownership—Easements.

A judgment in processioning proceedings as to ownership of the land in dispute does not necessarily include the question of an easement by ad*529verse possession under the statute of limitations, defined to be “a liberty, privilege, without profit in the land of another, existent distinct from the ownership of the soil,” and such conclusion does not of itself necessarily work an estoppel on the question of an outstanding easement in the land claimed by a party in an independent action.

Appeal by defendant from Bay, J., at tbe May Term, 1921, of UrnoN.

Plaintiff, claiming ownership of a lot in city of Monroe, abutting on Hayne Street, institutes this action, alleging that defendant, owner of a lot to south of plaintiff’s, has built a brick opera house and postoffi.ee thereon, which, in the eaves and other incidents above the surface, wrongfully project over plaintiff’s line, causing water from defendant’s building to fall on plaintiff’s said lot, and otherwise interfering with plaintiff’s rightful enjoyment of his property, and the prayer is for a mandatory injunction, requirihg defendant to remove the eaves and other projections, to restrain the trespass and nuisance thereby caused, and for general relief.

Defendant answers, admitting plaintiff’s ownership of the lot as claimed, and alleging in effect a prescriptive right to maintain said projections and the effects of same, etc., by open and adverse user for more than twenty years next before action brought. On the hearing, and in support of his position, plaintiff offered in evidence the record in a proceeding before the clerk to establish the line between the two lots under 0. S., ch. 9, sec. 361 et seq., in which said proceedings plaintiff alleged ownership of present lot. That defendant owned the lot just adjoining on the south and defendant claimed the true dividing line was as much as five feet in and upon the lot as claimed by plaintiff, and beyond the brick buildings which defendant had constructed upon his property.

Defendant answered, admitting plaintiff’s ownership as claimed, alleged that defendant had never claimed the true line to be five feet north •of defendant’s buildings, but admitted that the true dividing line was as plaintiff claimed, and on these admissions, appearing in defendant’s answer, the clerk entered the following judgment ’:

“This cause coming on to be heard before the undersigned clerk of Superior Court of Union County, N. 0., upon the verified pleadings filed in the cause, and it appearing to the court that the defendant admits the location of the lines claimed by plaintiffs to be at the places where plaintiffs contend that they are, and that there are no issues either of fact or law to be decided by a court and jury:

“Now, therefore, upon motion of plaintiffs, it is ordered, adjudged, and decreed that the true dividing line between the lot of plaintiffs and the lot of the defendant J. T. Shute is a line commencing at the northwest corner of J. T. Shute’s brick opera house building on the eastern *530boundary of Hayne Street and running tbence with, the northern wall of said brick opera house building and with the old postoffice building of J. T. Shute about north 87 east 180 feet, more or less, to Beasley Street, the northeast corner of said J. T. Shute’s postoffice building; and it is further ordered, adjudged, and decreed that the true dividing line between the lot of plaintiffs and the lot of defendant S. B. Hart is a line commencing at a point on the eastern boundary of Hayne Street 30 feet north of the northwest corner of the said J. T. Shute’s brick opera house building and running thence parallel with the dividing line between the lot of plaintiffs and the lot of the defendant J. T. Shute to Beasley Street; and the cost of this action be divided between the plaintiff and the defendant J. T. Shute.

“This 6 November, 1919. R. ~W. Lemmond, O. S. C.”

■ The record was admitted by defendant, and the court being of opinion that defendants were estopped by the proceedings and judgment before the clerk from maintaining any claim for an easement or other right in plaintiff’s property, judgment was entered substantially as claimed by plaintiff, and defendants excepted and appealed.

Stack, Parker & Oraig for plaintiffs.

Vann & Millihin for defendant.

Hoke, J.

In Coltrane v. Laughlin, 157 N. C., 282, it was held, in effect, that “when a court having jurisdiction of the cause and the parties enters judgment therein purporting to determine the controversy, the judgment will estop the parties and their privies as to all issuable matters directly presented by the pleadings, and though not issuable in the technical sense, it will conclude, among other things, as to all matters within the scope of the pleadings, which are material and relevant and were in fact investigated and determined.”

And this statement of the principle is in accord with numerous decisions where the subject has been directly considered. Holloway v. Durham, 176 N. C., 550; Propst v. Caldwell, 172 N. C., 594; Cropsey v. Markham, 171 N. C., 44; Gillam v. Edmondson, 154 N. C., 127; Tyler v. Capeheart, 125 N. C., 64; Jordan v. Farthing, 117 N. C., 188.

The record relied upon by plaintiff as an estoppel in the present case is a proceeding before the clerk, and terminated before him, to settle the location of a disputed boundary line under the provisions of C. S., ch. 9. Proceeding under this statute, the Court is bound by its limitations and restrictions, Proctor v. Comrs., ante, 56, and the law confers on the clerk no jurisdiction to settle questions of title. He can only authoritatively determine the location of a disputed line, and very *531properly tbis is all tbat bis judgment professes to decide. “It is ordered and decreed tbat tbe true dividing line between tbe lot of plaintiffs and tbe lot of defendant J. T. Sbute is a line commencing at tbe northwest corner of J. T. Shute’s brick opera bouse building on tbe eastern boundary of Haynes Street, and running tbence with tbe northern wall of said brick opera bouse building and with tbe old postoffice building about north 87 east 180 feet, more or less, to Beasley Street, tbe northwest corner of said J. T. Sbute’s postoffice building.”

Tbe statute itself provides, in section 362: “Tbat tbe occupation of land constitutes sufficient ownership for tbe purposes of tbis chapter.” Tbe judgment of tbe clerk only undertook to determine tbe location of tbe surface line between tbe parties, and did not purport to settle tbe extent or character of tbe proprietary interests of tbe owners or claimants on either side. Not only were these matters not investigated or determined in any bearing before him, but tbe clerk, as stated, was without jurisdiction over them, and tbe parties are therefore not concluded by bis judgment in respect to them. Tbe decisions which were cited by counsel as upholding tbe claim of an estoppel by judgment were cases where, tbe issue of title being raised in tbe pleadings, tbe cause was transferred to tbe Superior Court, and under tbe statute applicable became, in effect, an action to determine tbe title, etc., tbat court having general jurisdiction could enter a judgment concluding tbe parties as to tbe questions presented by tbe pleadings. Hilliard v. Abernethy, 171 N. C., 644; Maultsby v. Braddy, 171 N. C., 300; Woody v. Fountain, 143 N. C., 66.

There is nothing in Whitaker v. Garren, 167 N. C., 658, tbat militates against tbis ruling. In tbat case tbe trial judge, under several decisions construing a former statute, bad held tbat in a subsequent suit between tbe parties to try out tbe question of title, a proceeding under tbe statute before tbe clerk to settle a disputed line could be allowed no effect whatever, and could not be received in evidence. Tbe Court, in Whitaker v. Garren, supra, only held tbat under tbe statute now prevailing, “tbe action of tbe clerk in a proceeding to settle tbe line was admissible as to tbe location of tbe line,” but it was not held tbat tbe'judgment-of tbe ■clerk in a proceeding which terminated before him could work an estoppel on questions of title.

Apart from tbis, in a proceeding of tbis character a finding on tbe question of ownership does not necessarily signify tbe bolder of an unincumbered title. A recognized definition of easement is “a liberty, privilege, without profit,, in tbe land of another,' existent distinct from tbe ownership of the soil,” and unless it should appear from tbe issue and evidence pertinent tbat a full and unincumbered title was tbe question determined, such a finding would not of itself necessarily work an *532estoppel as to tbe existence of an outstanding easement in tbe property. Stokes v. Maxon, 113 Iowa, 122; Burr v. Lamaster, 30 Nebraska, 688; 9 R. C. L., pp. 735-736.

On tbe record, we are of opinion tbat tbe proceedings and judgment of tbe clerk as to correct placing of a surface line does not work an 'estoppel on defendants as to tbe easement claimed by them, and tbe cause must be remanded tbat tbe issues arising on tbe pleadings may be properly determined.

Error.