O'Neal v. Dunston, 168 N.C. 80 (1914)

Sept. 16, 1914 · Supreme Court of North Carolina

168 N.C. 80

WINSLOW O’NEAL v. J. L. DUNSTON.

(Filed 16 September, 1914.)

Trials — Issues of Fact — Judgments—Costs.

This controversy presents issues of fact as to a dividing line between the lands of the parties, and the plaintiff was properly taxed with costs, the verdict establishing the line in accordance with the defendant’s contention.

Appeal by plaintiff from F'erguson, J., at January .Term, 1914, of OUBRITUCK.

Aydlett and Simpson for plaintiff.

W.ard & Thompson and Fhringhaus and Small for defendant.

Peb Cubiam.

The real controversy in this action is one of fact as to the true dividing line between the plaintiff and defendant, which has been decided by the jury, and we find no error upon the trial.

The verdict was in favor of the defendant, and judgment for the entire cost was awarded against the plaintiff, to which he excepted upon the ground that while he did not maintain his claim against the defendant in its entirety, he did in part.

It appears, however, that the defendant did not claim possession of any part of the land in controversy beyond the line found to be the true line, and as there is no evidence tending to prove, and no finding showing possession beyond the line, it was proper to enter judgment for cost against the plaintiff.

No error.