Boone v. Collins, 202 N.C. 12 (1931)

Dec. 23, 1931 · Supreme Court of North Carolina
202 N.C. 12


(Filed 23 December, 1931.)

Evidence C a — Where the burden of proof is placed on both parties at the same time a new trial will be awarded.

In a special proceeding to establish tbe dividing line between adjoining landowners tbe burden of proving tbe true boundary is on tbe plaintiff, and where tbe trial judge inadvertently places the burden of the proof on both parties at tbe same time a new trial will be awarded, tbe rule as to tbe burden of proof constituting a substantial right.

Appeal by defendant from Harwood, Special Judge, at May Term, 1931, of Haywood.

Special proceeding to establish dividing line between adjoining lands of plaintiff and defendant, designated, by common consent, as “tbe M. P. Francis line.”

It was agreed that tbe true location of tbe boundary line between plaintiff’s and defendant’s lands was either tbe “Solid Line” or tbe “Dash Line,” as shown on map made by court surveyor, tbe plaintiff contending that it was tbe former and tbe defendant that it was tbe latter.

Tbe court instructed tbe jury as follows:

“If tbe plaintiff has satisfied you by tbe greater weight of the evidence that tbe solid line is tbe true location as indicated on tbe map of tbe M. P. Francis line you will write ‘Solid Line’; and if the defendant has satisfied you by tbe greater weight of tbe evidence that tbe dash line is tbe true location, then you will write ‘Dash Line.’ ” Exception.

Tbe jury returned tbe following verdict: “What is tbe true location of tbe M. P. Francis line ? Answer: Solid Line.”

From a judgment on tbe verdict for plaintiff, tbe defendant appeals, assigning errors.

*13 Grover G. Davis for plaintiff.

Joe. E. Johnson' Morgan, Stamey & Ward and Johnson, Smothers & Rollins for defendant.

Stacy, 0. J.

This is a special proceeding to establish the dividing line between adjoining landowners. The plaintiff says the line is at one place, the “Solid Line” .shown on the map, and the defendant says it is at another, the “Dash Line” shown thereon.

The burden of establishing the true location of the boundary line was . on the plaintiff. Hill v. Dalton, 140 N. C., 9, 52 S. E., 273. But this was inadvertently placed on both parties at the same time. Power Co. v. Taylor, 194 N. C., 231, 139 S. E., 381. Similar instructions were held for error in Garris v. Harrington, 167 N. C., 86, 83 S. E., 253, and Tillotson v. Fulp, 172 N. C., 499, 90 S. E., 500. The burden of proving the affirmative of a single issue cannot rest on both sides at the same time. Carr v. Bizzell, 192 N. C., 212, 134 S. E., 462; Speas v. Bank, 188 N. C., 524, 125 S. E., 398.

The rule as to the burden of proof constitutes a substantial right, and its erroneous placing is reversible error. Hosiery Co. v. Express Co., 184 N. C., 478, 114 S. E., 823.

New trial.