Collins v. Young, 195 N.C. 853 (1928)

March 7, 1928 · Supreme Court of North Carolina

195 N.C. 853

COLLINS v. YOUNG.

(Filed 7 March, 1928.)

Civil actioN before Lyon, Emergency Judge, at October Term, 1921, of HaRNETT.

The plaintiff is the owner of the southern half of lot No. 2, Block B, as shown on the plan of the town of Angier. The defendant is the owner of the northern portion of lot No. 1 in said block. Lots 1 and 2 adjoin. After purchasing the land plaintiff erected a, two-story brick building thereon and offered evidence tending to show that at the time his brick building was erected he set his northern wall six inches from his line. The defendant, who owns a lot to the south of plaintiff’s lot, began the erection of a brick building and proposed to locate the northern wall of his building along the' line of plaintiff’s wall. Thereupon the plaintiff instituted this suit to restrain the defendant from erecting said wall upon the ground that the defendant’s wall would overlap plaintiff’s land six inches, “thereby placing about six inches of the defendant’s building on the land of plaintiff, . . . which acts on the part of the defendant will deprive plaintiff of his property rights in said strip of land without due process of law and to his great danger and damage.” The defendant denied that the six inches of land in dispute belonged to the plaintiff, alleging that he was the owner of the six-inch strip of land.

The court submitted to the jury the following issue: “Is the plaintiff the owner of the six inches of land in dispute ?”

The jury answered the issue “No,” and from judgment upon the verdict plaintiff appealed.

Dupree & BtricYlalnd and Young & Young for plaintiff.

J. B. Baggett and J. G. Clifford for defendant.

Per Curiam.

Tbe plaintiff arrived at bis true corner by measuring from tbe bub of tbe town, wbicb was an iron stake or pin set in tbe ground about tbe corner of tbe McLeod building. Tbe surveyor appointed by tbe court testified tbat tbe bub was tbe proper beginning point to locate any lot in tbe town of Angier, but testified further: “I could not find tbe bub, altbougb I bad it dug for. A brick wall was located at tbat point, but tbe bub or iron stake seemed to be missing.” Other witnesses for plaintiff testified tbat they knew tbe location of tbe bub, and tbat tbe bub was at tbe corner of tbe McLeod building.

Tbe judge charged tbe jury as follows: “So tbe burden in this case, gentlemen of tbe jury, is on tbe plaintiff to satisfy you from tbe evidence and by tbe greater weight of tbe evidence, tbat be is tbe owner of tbe six inches of land in dispute. Tbat is all there is in dispute, six inches, between tbe lots or on tbe lots of plaintiff and defendant.”

There was no specific exception to this charge.

Furthermore, tbe complaint alleged tbat tbe construction of tbe brick building, as proposed by tbe defendant, would overlap plaintiff’s line about six inches and would deprive plaintiff “of bis property rights in said strip of land without due process of law.”

Construing together tbe pleadings, tbe charge of tbe court, and tbe issue submitted, it is obvious tbat an issue of fact only was presented. Tbe jury has answered this issue adverse to tbe plaintiff, and we find no error in tbe record warranting a new trial.

No error.