#### G. M. FISH and W. P. EVANS v. W. R. KILLIAN.

(Filed 23 December, 1925.)

Appeal by defendant from Finley, J., and a jury, January Term, 1925, Haywood. No error.

Tbe plaintiffs’ action was originally brought in tbe nature of a processioning proceeding for tbe purpose of settling and locating tbe boundary line between plaintiffs and defendant.

Tbe defendant, in bis answer, claimed tbe land and denied tbat plaintiffs bad any title. Tbe case was tried out on tbe theory of an action of ejectment.

Tbe issues submitted to tbe jury and their answers thereto were as follows :

“1. Is tbe plaintiff tbe owner and entitled to tbe possession of tbe land described in tbe complaint? Answer: Yes.

“2. Is tbe defendant in tbe wrongful possession of tbe said lands or any part thereof? Answer: Yes, 37 feet from center of railroad.”

John M. Queen and Alley & Alley for plaintiff.

Smothers, Robinson & Gogburn for defendant.

Pee Cueiam.

From a careful reading of tbe record, we tbink tbe question of tbe ownership of tbe land was one of fact. Tbe facts on both sides indicate to some extent “No man’s land.” On tbe whole, tbe evidence of plaintiff was sufficient to be submitted to tbe jury. From a critical examination of tbe assignments of error and tbe charge of tbe court below, we can find no prejudicial or reversible error.

No error.