Opinion
(December Term, 1843.)
1. Where there is a summary proceeding of an inferior tribunal, as in a case under the processioning act, not according to the course of common law, the party is entitled, ex debito justitiae, to a certiorari to bring it up for review in the matter of law.
2. The report of a processioner ought to state the lines claimed by each party, and that while running a line as claimed by one party he was stopped by the other, and must set forth particularly the locality of the line thus claimed and of the part of it at which he was stopped, so as to constitute an issue on the boundary.
APPEAL, from Manly, J., at Fall Term, 1843, of RANDOLPH. (156)
Winston for plaintiff.
Mendenhall and Iredell for defendant.
The following is the case as it appears from the record: At August Term, 1839, of Randolph County Court, John D. Brown, a processioner of Randolph County, reported to the court that he had been required by William Matthews to procession a tract of land for him, and particularly to establish the lines between his land and that of Ezekiel Matthews, and that on 23 May, 1839, he met the said parties on the said land of William Matthews (which is not described) and "proceeded to ascertain the black jack corner, then down, from which corner east was one of the lines between the said William and Ezekiel; and after running two lines your processioner, from particular circumstances, thought it doubtful where the black jack corner formerly stood; and that it was then agreed between the said parties that your processioner should run and procession the line between the said Ezekiel and the said William south from where the line east from the black jack corner, after having gone down the various courses of a certain branch from a stone corner, would intersect the county line of Chatham to William Matthews' corner; and that your processioner then, in order to ascertain where that corner was, commenced running at a marked post oak, which was said to be in the county line, and run without measuring due south to the aforesaid branch, the said parties being present with their deeds; and that your processioner then had the chain stretched, and after running on due south 1 chain and 18 links, he was forbidden by the said Ezekiel to proceed further, upon the plea that he was running on the said Ezekiel's land, he (the said Ezekiel) claiming the land from that place east as far as the said branch, with its various courses, to Bush Creek, and the said William claiming the land east from a straight line running from a corner, formerly Pickett's corner, on the north side of his plantation to an oak, now Aaron Moffitt's and the said Ezekiel's corner, so far as his land extends."
On the foregoing report five free holders were appointed, who, with the processioner, were to ascertain and report "where the true line is between the said parties." At the next term they made a report, (157) accompanied by a plat in explanation, and thereby established the point where the black jack formerly stood, and a line from that point north 89degrees 60' east 15 chains to a branch as one of the lines between the parties; and it also established two other lines not necessary to be particularly stated in reference to the point now before the Court; and these lines were, as stated in this report, all the disputed lines.
At November Term, 1840, the report was confirmed and judgment given against E. Matthews for costs. In January, 1841, he obtained a certiorari on his affidavit stating that he had prayed an appeal and was induced to abandon it by the agreement of William Matthews not to insist on the judgment, but to refer the suit to arbitration, and that after the court adjourned he refused to do so.
Upon the return of the certiorari, there were affidavits on both sides upon the point of an amicable arrangement by a reference; and E. Matthews offered other affidavits, which establish satisfactorily that the principal contest was as to the locality of the line between Chatham and Randolph, which running north and south, divides the lands of these parties, and that the commissioners were entirely misled as to the true line. William Matthews opposed the reading of these latter affidavits, and insisted that the case was to be decided upon the record from the county court, but the court heard the affidavits and, upon them and the record, reversed the judgment of the county court, quashed the report of the freeholders, and ordered the same to be certified to the county court with directions to proceed further in the cause agreeably to justice and right. From that decision William Matthews appealed.
We do not stop to inquire into the particular cause why E. Matthews did not appeal, nor whether it would have been proper on an appeal to hear affidavits as to the merits which were not offered in the county court, because, taking up the case upon the record (158) alone as urged by W. Matthews, we think it must be determined against him. This being a summary proceeding of an inferior tribunal, not according to the course of the common law, we think the party entitled, ex debito justitiae, to a certiorari to bring it up for review in the matter of law as in other cases on a writ of error; and if found to be erroneous, to have it quashed.
It has been decided in Wilson v. Shuford, 7 N.C. 504, and Carpenter v. Whitworth, 25 N.C. 204, that the report of the processioner must set forth the claims of the respective parties and their opposite allegations in such a way as to show the points of dispute, so that the parties may not be surprised, the freeholders know therefrom what they are to decide, and the court see that the lines or corners established by the freeholders are those which one of the parties claimed and the other denied to him. Without such a rule there would be no precision in proceedings of this kind. Although it was no doubt his purpose to comply with it, the processioner seems to us to have entirely failed in the report made by him in this case.
The report begins by stating that the processioner had "proceeded to ascertain the black jack corner, then down, from which corner east was one of the lines between the said William and Ezekiel." That line, then, was one of the lines, which, as was before mentioned in the report, was to be processioned and established. It then proceeds to state, "that after running two lines, the processioner, from particular circumstances, thought it doubtful where the black jack corner formerly stood." There it stops as to that point of the controversy; and from what is said, it cannot be told what the dispute between the parties was as to that corner. The processioner says he was at a loss to determine where the corner was; so the parties also might have professed an inability to identify it, and therefore did not set up a claim to any particular point as the terminus. At all events, it is not stated that the parties respectively claimed that terminus to be at different designated points, so as to put them at issue on the question. In such a case and upon an order passed that the freeholders were "to ascertain and report where (159) the true line is between the parties," those persons would have to inquire at large and inform the parties where the tree stood. But that is not their office under the statute. It is, on the contrary, to establish "the disputed line" by finding that it begins at such a point and runs to such another, as claimed by one of the parties. There must be an issue between the parties apparent on the processioner's report; otherwise there is no controversy that can be definitely decided.
The report then advances to another line, about which it seems more distinctly there was a dispute. But of the precise point in dispute the report fails to present the requisite information; and in this it is again defective. It states that it was agreed, as we understand it, that from the point of intersection of the county line and a certain other line (which is not very intelligibly described) the processioner should run and procession a line south to William Matthews' corner; and that in order, as we understand it, to ascertain where that ( William Matthews') corner stood he began "at a marked post oak, which is said to be in the county line," and run due south until he came to the aforesaid branch; and then, still running due south, he was, at the distance of 1 chain and 18 links, forbidden to proceed by E. Matthews, upon the plea that he was running on his land, he (the said E. Matthews) claiming the land from that place east as far as the branch, with its various courses, to Brush Creek. From this we can collect that Ezekiel Matthews claimed that the branch, from the point at which the survey crossed it, to Brush Creek, was his boundary, and that the land belonged to him which was on the west side of the branch and between it and the line which the processioner was then running; that is to say, south from the "marked post oak," and after crossing the branch. Now, we are unable to see that the claim of William Matthews is in conflict with that. They probably are in fact inconsistent with each other, but it is not directly affirmed to be so, nor are they so described in the report as to appear so to be. The words are "William Matthews claiming the land east from a (160) straight line running from a corner (formerly Pickett's corner) on the south side of his plantation to an oak, now Aaron Moffitt's and the said Ezekiel's corner." We cannot identify this line thus claimed by William to be that which the processioner was running when Ezekiel Stopped him. They may be the same, but one cannot see that they are. The one begins at "a marked post oak supposed to be in the county line," the other at "a corner, formerly Pickett's corner,: without saying whether it be a marked post oak or any other tree, or whether it stood in or out of the line; the one runs south from the marked post oak to a branch, and, after crossing the branch, is still running south, but without any terminus called for; the other runs straight from Pickett's old corner, without mentioning any course, to a certain oak as the terminus. Thus it may be that the two lines are not identical; and if they be not, the report must be pronounced defective. It is not sufficient that it should be reported that two persons owning coterminus lands claim different lines. It ought to state the lines as claimed by each, and that the processioner, while running a line as claimed by one of the parties, was stopped by the other. One of the purposes of having the adjoining proprietors present is that they may see the lines, claimed by the person, designated by actual survey, and be enabled by view to know whether it interferes with their lands, and how far. In this case the controversy seems probably to have been, what was the county line — that being called for an opposite sides as the line between the parties. It may be that Pickett's corner and the marked post oak are one and the same, or that the former is at a point in the county line (as claimed by William) north of the latter, and that by running south from Pickett's corner the line would strike the marked post oak and go on to Moffitt's corner also, as claimed by the same party. But that it is so must be conjecture, and that is no ground for a judicial sentence. We cannot know that if the processioner had run the line claimed by William from Pickett's corner (wherever it is) to Moffitt's and E. (161) Matthews' corner oak (wherever it is), the other party would not have seen from the running either that it did not interfere with him, or if it did, that it was the true line, and thus been led to decline the controversy. It is nothing to the purpose that a party stops a surveyor from running one line when the other party claims another line. To found this proceeding, the processioner must be forbidden to proceed on a line claimed by the party, and the locality of the line thus claimed, and of the part of it at which he was stopped, must be stated in the report so as to constitute an issue on the boundary.
We think, therefore, not only that his Honor was right in reversing the judgment of the county court and quashing the report of the freeholders, but that he should have gone farther and directed the report of the processioner also to be quashed as wrong from the beginning, and so this Court adjudges, and with costs, against William Matthews throughout.
PER CURIAM. Judgment accordingly.
Cited: Hoyle v. Wilson, 29 N.C. 469; Comrs. v. Kane, 47 N.C. 291; Porter v. Durham, 90 N.C. 58; Forney v. Williamson, 98 N.C. 332; Euliss v. McAdams, 101 N.C. 398.