{
  "id": 8612651,
  "name": "ANNANIAS CORNELISON and His Wife, LILLIE CORNELISON, v. MADISON HAMMOND and His Wife, TURA HAMMOND",
  "name_abbreviation": "Cornelison v. Hammond",
  "decision_date": "1945-10-31",
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  "last_updated": "2023-07-14T21:52:44.450219+00:00",
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    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "ANNANIAS CORNELISON and His Wife, LILLIE CORNELISON, v. MADISON HAMMOND and His Wife, TURA HAMMOND."
    ],
    "opinions": [
      {
        "text": "Barnhill, J.\nWhen, in a processioning proceeding under G. S., ch. 38, it is made to appear that there is a bona fide dispute between the owners as to the true location of the boundary line between adjoining tracts of land, may the cause be dismissed as in case of nonsuit? The answer is no.\nThe proceeding authorized by G. S., ch. 38, is an in rem proceeding. The petitioner is required to make th\u00e9 adjoining landowner party defendant and to allege only \u201cfacts sufficient to constitute the location\u201d of the disputed line as claimed by him. If the respondent fails to answer, \u201cjudgment shall be given establishing the line according to petition.\u201d If answer denies the location as alleged, a surveyor is appointed. He makes report to the clerk who then hears the cause and locates the line. From his order either party may appeal. G. S., 38-3.\nIts purpose is to judicially determine the location of a disputed boundary line between adjoining tracts of land and the gravamen of the cause of action is the existence of a controversy between plaintiffs and defendants as to the true location of the line dividing the lands owned by plaintiffs and those owned by defendants.\nWhen it is made to appear that such controversy exists, plaintiffs have a legal right to have the line ascertained and fixed by judicial decree even though, finally, it may be located as contended by defendants.\nWhen the cause is heard on appeal, unless the pleadings are complicated by other allegations, only one issue arises \u2014 where is the true location of the dividing line between the lands of the plaintiffs and those of the defendants? Greer v. Hayes, 216 N. C., 396, 5 S. E. (2d), 169; Huffman v. Pearson, 222 N. C., 193, 22 S. E. (2d), 440; McCanless v. Ballard, 222 N. C., 701, 24 S. E. (2d), 525.\nIt is the province of the jury to locate the line. It is for them to say, on the conflicting testimony and under the instructions of the court, where the line is. Greer v. Hayes, supra; Clegg v. Canady, 217 N. C., 433, 8 S. E. (2d), 246; Huffman v. Pearson, supra; McCanless v. Ballard, supra.\nIf the plaintiffs are unable to show by the greater weight of evidence the location of the true dividing line at a point more favorable to them than the line as contended by the defendants, the jury should answer the issue in accord.with the contentions of the defendants. Greer v. Hayes, supra; Boone v. Collins, 202 N. C., 12, 161 S. E., 543. But, in the absence of an agreement, this does not imply that the jury must answer the issue either as contended by plaintiffs or as contended by defendants. McCanless v. Ballard, supra. They, by their answer to the issue, may fix the location wherever the evidence, in their opinion, justifies.\nIt is admitted that plaintiffs and defendants own adjoining tracts of land. That a dispute exists as to the true location of the boundary line between these tracts is quite evident. The one issue \u2014 where is the true boundary line \u2014 is unanswered. The dispute with all its precarious potentialities still is undetermined. The statute is expressly designed to provide a means of settlement by an orderly proceeding in court and the plaintiffs, as a matter of right, are entitled to have the issue answered by a jury so that the controversy may be brought to an end by judicial decree. Hence the cause should not be dismissed as in case of nonsuit. Jackson v. Williams, 152 N. C., 203, 67 S. E., 155; Geddie v. Williams, 189 N. C., 333, 127 S. E., 423.\nWe do not mean to imply that the cause may not be dismissed when it is made to appear that (1) there are fatal irregularities or defects on the face of the record, Jackson v. Williams, supra, or (2) no bona fide dispute exists, Lowder v. Smith, 201 N. C., 642, 161 S. E., 223; Wood v. Hughes, 195 N. C., 185, 141 S. E., 569, or (3) plaintiffs and defendants are not the owners of adjoining tracts. Clegg v. Canady, supra; McCanless v. Ballard, supra.\nThe judgment below is\nReversed.",
        "type": "majority",
        "author": "Barnhill, J."
      }
    ],
    "attorneys": [
      "J. G. Prevetie for plaintiffs, appellants.",
      "J. A. Spence for defendants, appellees."
    ],
    "corrections": "",
    "head_matter": "ANNANIAS CORNELISON and His Wife, LILLIE CORNELISON, v. MADISON HAMMOND and His Wife, TURA HAMMOND.\n(Filed 31 October, 1945.)\n1. Boundaries \u00a7 7\u2014\nIn a processioning proceeding under G. S., 38-1, et seq., when it is made to appear that there is a iona fide dispute between landowners as to the true location of the boundary line between adjoining tracts of land, the cause may not be dismissed as in case of nonsuit.\n2. Boundaries \u00a7 10\u2014\nWhen a cause to determine the true boundary line between adjoining landowners is heard on appeal from the clerk, unless the pleadings are complicated by other allegations, there is only one issue \u2014 where is the true location of the dividing line between the lands of plaintiff and defendant?\n3. Boundaries \u00a7 7\u2014\nThe statute, G. S., 38-1, et seq., is expressly designed to provide a means of settlement by an orderly proceeding in court and plaintiff, as a matter of right, is entitled to have the issue answered by a jury so that the controversy may be brought to an end by judicial decree.\n4. Same\u2014\nThe cause may be dismissed when it is made to appear that (1) there are fatal irregularities or defects on the face of the record, or (2) no T>ona fide dispute exists, or (3) plaintiff and defendant are not the owners of adjoining tracts.\nAppeal by plaintiffs from Phillips, J., at July Term, 1945, of RaNdolph. Reversed,\nProcessioning proceeding under G. S., ah. 38, to locate a disputed boundary line between adjoining property owners, here on former appeal. Gornelison v. Hammond, 224 N. C., 157.\n\u25a0 After the pleadings were read the court, on motion of defendants, required plaintiffs to elect which line as shown on the map they contend is the true dividing line. Plaintiffs, in response thereto, announced that they contend the line from Black A to Black B is the true line.' At the conclusion of the evidence for the plaintiffs, defendants moved for judgment of nonsuit. The court \u201cbeing of the opinion that there was not sufficient evidence to be submitted to the jury as to the location of the line from Black A to Black B on the map, as claimed by plaintiffs,\u201d allowed the motion and entered judgment dismissing the action at the cost of plaintiffs. Plaintiffs excepted and appealed.\nJ. G. Prevetie for plaintiffs, appellants.\nJ. A. Spence for defendants, appellees."
  },
  "file_name": "0535-01",
  "first_page_order": 583,
  "last_page_order": 585
}