An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1020


Filed: 15 July 2003


v .                             Yancey County
                                No. 99 SP 5

    Appeal by defendants from judgment entered 21 December 2001 by Judge James L. Baker in Yancey County Superior Court. Heard in the Court of Appeals 19 May 2003.

    Donny J. Laws for plaintiff-appellee.

    Staunton Norris for defendant-appellants.

    EAGLES, Chief Judge.

    Defendants Arlene Banks Staley and Michael Enoch Staley appeal from a judgment based upon a jury verdict that adopted plaintiff Johnny Hall's interpretation of the location of their common property line. Defendants assert three arguments on appeal: (1) the trial court should have granted defendants' motion for a directed verdict; (2) parol evidence offered during the testimony of plaintiff's surveyor and several neighbors should not have been admitted; and (3) the trial court improperly omitted the issue of superior title from the jury instructions. After carefulconsideration of the record and arguments of counsel, we discern no error.
    By a deed recorded on 3 May 1977 at 9:04 a.m., Dewey and Laura Hensley conveyed two pieces of land to Lucille and Thurman Banks. The parcel designated as “First Parcel” within the deed did not contain an acreage description. This parcel was conveyed to defendants in May 1987. The 1987 deed described the parcel as containing approximately thirty acres of land. In a separate deed recorded on 3 May 1977 at 9:05 a.m., Dewey and Laura Hensley transferred a 225-acre piece of land to plaintiff and his wife. Plaintiff's deed stated that his 225-acre parcel of land was subject to several exceptions outlined in other deeds in the public record. Plaintiff's deed specifically excepted the “tract of land conveyed to Lucille H. Banks containing about 30 acres.” The two parcels of land conveyed to plaintiff and defendants are separated by a common boundary. The location of this boundary is the subject of this litigation. In the Lucille and Thurman Banks deed, the boundary is described as follows:
    [A] Northeast course to a White Oak stump; thence running a Southerly course to a stake in the Northeast corner of the 3 acre tract; thence running with the old fence row to a White Oak; thence running from the White Oak a Southeasterly course with the old fence row to a Dogwood at what is known as the old crossing at the upper side of the old flat fields; thence a Southwest course to a Wild Cherry . . . .

    The boundary line in question forms the eastern boundary of defendants' land and the western boundary of plaintiff's land. At trial, plaintiff's surveyor Eric Hensley testified that he had located all of the monuments listed in the boundary description,with the exception of the “3 acre tract” and the “old crossing.” However, another surveyor for the plaintiffs, James Hughes, testified that he had followed a neighbor's guidance regarding the location of the “3 acre tract” and the “old crossing” listed in the boundary description. This testimony about what neighbor William Fender told plaintiff's surveyor was allowed by the trial court in order to corroborate William Fender's later testimony about the location of these two monuments. Grady Fender also testified regarding the location of the monuments in the boundary description. According to plaintiff's evidence, the boundary line was drawn so that defendants' deed granted defendants approximately 23.570 acres of land. The boundary line propounded by plaintiff was designated “A-B” on the trial court's exhibit map.
    Defendants' motion for directed verdict at the close of plaintiff's evidence was denied. Defendants' surveyors testified that they had located every monument listed in the boundary description. However, defendants' surveyors placed the boundary line further east than plaintiff's surveyors did. Approximately 42.220 acres of land covered the area between the two proposed boundary lines. The boundary line propounded by defendants (designated “C-B”) would have resulted in their ownership of a 65.377 acre tract. After presenting their evidence, defendants renewed their motion for a directed verdict on the evidence and on the basis of a superior title from a common grantor.
    The issue of the boundary's location was submitted to the jury. The jury placed the boundary line according to plaintiff'sinterpretation “A-B”. The jury's verdict resulted in a 23.570 acre parcel for defendants. The trial court denied all defendants' motions for directed verdict and motion for new trial. The trial court entered judgment granting title to the disputed 42.220 acres to plaintiff, with the boundary drawn according to plaintiff's interpretation. Defendants appeal.
    Defendants argue that the trial court improperly allowed admission of parol evidence in order to locate the disputed boundary. “When the boundaries of a tract can be determined by reference to the description in a deed . . . parol evidence is not admissible . . . . [T]he statements and acts of adjoining landowners are not competent evidence of the location of a boundary when the boundary can be located by the calls in a deed.” Canady v. Cliff, 93 N.C. App. 50, 55, 376 S.E.2d 505, 508, disc. rev. denied, 324 N.C. 432, 379 S.E.2d 239 (1989)(citations omitted). “But when the terms used in the deed leave it uncertain what property is intended to be embraced in it, parol evidence is admissible to fit the description to the land.” Powell v. Mills, 237 N.C. 582, 588, 75 S.E.2d 759, 765 (1953). Here, the trial court properly admitted the parol evidence regarding boundary markers that was given by William and Grady Fender. The deed in question referred to physical monuments that could be removed or altered over time. In addition, the general descriptions contained in the boundary line “fit” two possible alternate interpretations on the ground. Therefore, it was proper and necessary for the court to receive parol evidence from both parties indicating where the boundary linewas commonly understood to lie. A mere reading of the deed, because it contained references to natural monuments instead of metes and bounds, did not make it possible to locate the land described by the deed. Therefore, we find no error in the trial court's admission of the parol evidence by the Fenders or the use of that parol evidence during Mr. Hughes's testimony.
    Defendants also assign error to the trial court's denial of defendants' motion for a directed verdict. Defendants contend that plaintiff did not present evidence regarding the location of several of the monuments that formed the disputed boundary. Namely, plaintiff's surveyor Hensley was unable to find the stake described as being in the northeast corner of the three acre tract and the dogwood at the “crossing at the upper side of the old flat fields.” However, plaintiff's other surveyor witness, James Hughes, testified that he had located the dogwood at the crossing and the stake in the three acre tract after getting information from the Fenders. The testimony of William and Grady Fender further corroborated the plaintiff's interpretation of the location of the boundary.
    When considering a motion for directed verdict, a trial court should consider the evidence in the light most favorable to the non-moving party and give the non-movant the benefit of every reasonable inference from the evidence. See Atlantic Tobacco Co. v. Honeycutt, 101 N.C. App. 160, 398 S.E.2d 641 (1990), disc. rev. denied, 328 N.C. 569, 403 S.E.2d 506 (1991). Here, all of the evidence taken in the light most favorable to plaintiff shows thatplaintiff's witnesses located each of the boundary markers consistent with his interpretation of the boundary's location. The law does not require that a surveyor's testimony regarding a boundary marker be the only type of competent evidence in every case. In addition, a directed verdict is generally considered inappropriate in processioning proceedings because the determination of the boundary is a question for the jury. See Beal v. Dellinger, 38 N.C. App. 732, 248 S.E.2d 775 (1978); Sipe v. Blankenship, 37 N.C. App. 499, 246 S.E.2d 527 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 470 (1979), overruled on other grounds by Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985). Because the evidence in the light most favorable to plaintiff put forth a location for each boundary marker, we hold there was no error in the trial court's denial of defendants' motion for a directed verdict.
    Defendants' final argument concerns the failure of the trial court to instruct the jury on the issue of superior title. Defendants contend that the defense counsel's agreement to omit the superior title issue from the jury instructions was the result of a mistake. It is unclear whether the instruction was omitted because of a mistaken agreement or whether the point was conceded by defense counsel. In either event, we hold that the trial court's omission of the superior title instruction was not in error. This case was structured as a boundary settlement proceeding. It did not concern deeds that contained overlapping property boundary descriptions. The issue in this case was thelocation of the monuments that formed defendant's eastern boundary line and plaintiff's common western boundary line. Since the question of superior title from a common grantor was not relevant to the physical location of the boundary monuments, the trial court did not err in omitting this jury instruction.
    For the reasons stated above, we hold that no reversible error occurred in this trial.
    No error.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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