JOHNNY HALL,
Petitioner/Plaintiff,
v
.
Yancey County
No. 99 SP 5
ARLENE BANKS STALEY and
husband, MICHAEL ENOCH
STALEY,
Respondents/Defendants.
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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