{ "id": 8656610, "name": "H. G. NASH et al. v. J. T. SHUTE", "name_abbreviation": "Nash v. Shute", "decision_date": "1921-11-23", "docket_number": "", "first_page": "528", "last_page": "532", "citations": [ { "type": "official", "cite": "182 N.C. 528" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "113 Iowa, 122", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2123886 ], "opinion_index": 0, "case_paths": [ "/iowa/113/0122-01" ] }, { "cite": "167 N. C., 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273910 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/167/0658-01" ] }, { "cite": "143 N. C., 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656157 ], "opinion_index": 0, "case_paths": [ "/nc/143/0066-01" ] }, { "cite": "171 N. C., 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270035 ], "opinion_index": 0, "case_paths": [ "/nc/171/0300-01" ] }, { "cite": "171 N. C., 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271656 ], "opinion_index": 0, "case_paths": [ "/nc/171/0644-01" ] }, { "cite": "117 N. C., 188", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "125 N. C., 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272895 ], "opinion_index": 0, "case_paths": [ "/nc/125/0064-01" ] }, { "cite": "154 N. C., 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651887 ], "opinion_index": 0, "case_paths": [ "/nc/154/0127-01" ] }, { "cite": "171 N. C., 44", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "172 N. C., 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254841 ], "opinion_index": 0, "case_paths": [ "/nc/172/0594-01" ] }, { "cite": "176 N. C., 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656904 ], "opinion_index": 0, "case_paths": [ "/nc/176/0550-01" ] }, { "cite": "157 N. C., 282", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657286 ], "opinion_index": 0, "case_paths": [ "/nc/157/0282-01" ] } ], "analysis": { "cardinality": 512, "char_count": 10191, "ocr_confidence": 0.454, "pagerank": { "raw": 6.754565280716151e-08, "percentile": 0.4090423804631081 }, "sha256": "ff2f05738b0e7e15c46f5eaa51c40c1325f21a1051bcd5b03df12f8634adb5be", "simhash": "1:63f00319cac5a70c", "word_count": 1723 }, "last_updated": "2023-07-14T14:57:09.696199+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "H. G. NASH et al. v. J. T. SHUTE." ], "opinions": [ { "text": "Hoke, J.\nIn Coltrane v. Laughlin, 157 N. C., 282, it was held, in effect, that \u201cwhen 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.\u201d\nAnd 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.\nThe 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 properly tbis is all tbat bis judgment professes to decide. \u201cIt 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\u2019s 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\u2019s postoffice building.\u201d\nTbe statute itself provides, in section 362: \u201cTbat tbe occupation of land constitutes sufficient ownership for tbe purposes of tbis chapter.\u201d 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.\nThere 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, \u201ctbe action of tbe clerk in a proceeding to settle tbe line was admissible as to tbe location of tbe line,\u201d but it was not held tbat tbe'judgment-of tbe \u25a0clerk in a proceeding which terminated before him could work an estoppel on questions of title.\nApart 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 \u201ca liberty, privilege, without profit,, in tbe land of another,' existent distinct from tbe ownership of the soil,\u201d 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 estoppel 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.\nOn 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.\nError.", "type": "majority", "author": "Hoke, J." } ], "attorneys": [ "Stack, Parker & Oraig for plaintiffs.", "Vann & Millihin for defendant." ], "corrections": "", "head_matter": "H. G. NASH et al. v. J. T. SHUTE.\n(Filed 23 November, 1921.)\n1. Judgments \u2014 Estoppel\u2014Courts\u2014Jurisdiction.\nJudgments 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.\n2. Same \u2014 Clerks of Court \u2014 Dividing Dine \u2014 Statutes\u2014Easements.\nThe 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.\n3. Judgments \u2014 Estoppel\u2014Dands\u2014Ownership\u2014Easements.\nA judgment in processioning proceedings as to ownership of the land in dispute does not necessarily include the question of an easement by adverse possession under the statute of limitations, defined to be \u201ca liberty, privilege, without profit in the land of another, existent distinct from the ownership of the soil,\u201d 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.\nAppeal by defendant from Bay, J., at tbe May Term, 1921, of UrnoN.\nPlaintiff, 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\u2019s, has built a brick opera house and postoffi.ee thereon, which, in the eaves and other incidents above the surface, wrongfully project over plaintiff\u2019s line, causing water from defendant\u2019s building to fall on plaintiff\u2019s said lot, and otherwise interfering with plaintiff\u2019s 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.\nDefendant answers, admitting plaintiff\u2019s 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.\nDefendant answered, admitting plaintiff\u2019s ownership as claimed, alleged that defendant had never claimed the true line to be five feet north \u2022of defendant\u2019s buildings, but admitted that the true dividing line was as plaintiff claimed, and on these admissions, appearing in defendant\u2019s answer, the clerk entered the following judgment \u2019:\n\u201cThis 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:\n\u201cNow, 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\u2019s brick opera house building on the eastern boundary 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\u2019s 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\u2019s 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.\n\u201cThis 6 November, 1919. R. ~W. Lemmond, O. S. C.\u201d\n\u25a0 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\u2019s property, judgment was entered substantially as claimed by plaintiff, and defendants excepted and appealed.\nStack, Parker & Oraig for plaintiffs.\nVann & Millihin for defendant." }, "file_name": "0528-01", "first_page_order": 598, "last_page_order": 602 }