An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1351

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2003

NICHOLAS E. RUSSELL and wife,
MARGIE GIBBS RUSSELL; and
JON D. RUSSELL,
            Plaintiffs,

v .                                 Rutherford County
                                    No. 00 CvS 935
MARION B. THORNTON and wife,
BETTY L. THORNTON,
            Defendants.

    Appeal by plaintiffs from judgment entered 17 April 2002 by Judge Loto Greenlee Caviness in Rutherford County Superior Court. Heard in the Court of Appeals 3 June 2003.

    McElwee Firm, PLLC, by John M. Logsdon, for plaintiff appellants.

    Atkins & Craven, by Lee Atkins and Susan S. Craven, for defendant appellees.

    McCULLOUGH, Judge.

    This case involves a land boundary dispute, the pertinent facts of which are as follows: Plaintiffs and defendants own contiguous lots at Lake Lure in Rutherford County, North Carolina. The lots are long and narrow, with a straight line running down a steep hill to the water's edge as their common boundary. In 1954, Mr. and Mrs. Walter Lambeth conveyed a tract of land lying on the eastern shore of Lake Lure to Mr. and Mrs. Harry Caplan and Mr. and Mrs. Robert Liebowitz. This tract was divided into lots and was denoted the “Henry Allan Rose Tract” in Plat Book 5, page 126 ofthe Rutherford County Registry. In 1960, Mr. and Mrs. Lonnie Hall purchased adjoining Lots 10 and 11 in the Henry Allan Rose subdivision. The plat of the subdivision was recorded in the Rutherford County Registry on 16 June 1954. On the plat, each lot had 100 feet along the Lake Lure shoreline. Title to Lots 10 and 11 was taken in the name of Mr. and Mrs. Hall, but it was their intention to later subdivide the two lots into four lots and deed three of the parcels to friends.
    Mr. Joe Wells was employed as a surveyor and was hired by Mr. Hall to divide each of the two lots equally. At that time, the land was in a natural state and had no construction upon it. When Mr. Wells performed his survey, he marked the division lines on the ground and used existing iron pins at the top of the hill. When he finished, all of the corners were marked with pins, some of which were installed by Mr. Wells. Mr. Wells drew a plat of his survey on 22 October 1960. The survey showed that the two halves of Lot 10 were designated Lots 1 and 2, while the two halves of Lot 11 were designated Lots 3 and 4. On 18 January 1961, Mr. and Mrs. Hall transferred Lot 1 to Mr. and Mrs. Burgin Levi, Lot 2 to Mr. and Mrs. J.C. Culbreth, Lot 3 to Mr. and Mrs. Harvey Gosnell, and retained Lot 4 for themselves. The description of the lot conveyed in each deed was identical to the description on Mr. Wells' plat and included a metes and bounds description which corresponded with the calls on Mr. Wells' survey. Shortly after the division occurred, the four couples built boathouses and retaining walls on their respective lots. Mr. Hall testified at trial that he and theother landowners agreed to place their boathouses on the extreme left corner of their respective property lines, using the surveyor's iron pins as guides.
    Lot 1 is currently owned by defendants. Mr. and Mrs. Burgin Levi conveyed Lot 1 to their daughter, Mrs. Linda Kay Levi Morgan. Mrs. Morgan had the lot surveyed in February 1998 by Mr. Nathan Odom in preparation for the sale of the lot to Mr. and Mrs. Richard Grow. After Mr. Odom completed his survey (the Odom survey), a plat was prepared. The Grows transferred Lot 1 to defendants by deed dated 29 June 1999. The description of Lot 1 in the deed was as follows:
        BEGINNING at an iron pin the Southeast corner of Paul Smith's lot, said iron pin being on the North margin of Thomns [sic] Knoll Beach [R]oad, and runs thence with the Smith line North 52 degrees and 22 minutes West 239.1 feet to an iron pin, near waters edge of Lake Lure; thence along and near waters edge in a Southwesterly direction 50 feet to an iron pin; thence South 59 degrees and 46 minutes East 233 feet to an iron pin on the north margin of said Thomns [sic] Knoll Beach [R]oad; thence along said margin North 78 degrees and 24 minutes East 20 feet to the BEGINNING, and known as Lot J#1 of the Lonnie E. Hall, Jr., Subdivision.

This description was nearly identical to the description in the original deed to Mr. and Mrs. Levi.
    Lot 2 is currently owned by plaintiffs. Mr. and Mrs. J.C. Culbreth conveyed Lot 2 to Mr. and Mrs. Harvey Gosnell by deed on 23 August 1966, so that the Gosnells owned Lots 2 and 3. The Gosnells hired Mr. Darrell Taylor to survey Lots 2 and 3 in preparation for the sale of the lots to plaintiffs. Mr. Taylorcompleted his survey (the Taylor survey) and prepared a plat. The description of lot 2 in the deed to the Gosnells is as follows:
            BEGINNING at an iron pin on the North margin of the Thomns [sic] Knoll Beach Road, the Southwest corner of Lot One of the Lonnie E. Hall, Jr. and Harriett F. Hall[,] his wife, Subdivision, and deeded by them to James Burgin Levi and Katheleen J. Levi, his wife, under date of January 18, 1961, with this deed, and runs thence with the line of said Levi lot North 59 deg. 46' West 233 feet to an iron pin at or near the water line of Lake Lure; thence along and near waters edge in a Southwesterly direction 50 feet to an iron pin, the Northeast corner of Lot Three of said Halls' Subdivision; thence South 68 deg. and 11' East 227.5 feet to an iron pin on the North margin of Thomns [sic] Knoll Beach Road; thence along said margin of the road North 78 deg. and 24' East 20 feet to the BEGINNING.

This description was nearly identical to the description in the original deed to Mr. and Mrs. Culbreth. Additionally, the deed from the Gosnells to plaintiffs described the lots by incorporating by reference Mr. Taylor's plat.
    Mr. Odom's plat described the dividing line between Lots 1 and 2 as “North 59 deg. 54 min. 16 sec. West 237.93 feet.” This description is nearly identical to the dividing line in the previously mentioned deed descriptions as well as Mr. Wells' plat. Mr. Taylor's plat described the dividing line between Lots 1 and 2 as “South 57 deg. 51 min. 42 sec. East 230.91 feet.” This description differs by approximately two degrees (approximately twelve feet) from the dividing line in the deed descriptions as well as Mr. Wells' plat. The dividing line on Mr. Taylor's plat overlaps the dividing line on Mr. Odom's plat.     During the summer of 2000, defendants began construction of a house on Lot 1 and requested a variance from the zoning ordinance of the Town of Lake Lure based upon the Odom survey. The Board of Adjustment for the Town of Lake Lure granted the variance to defendants based upon the survey. Thereafter, on 14 September 2000, plaintiffs filed a complaint and included actions for trespass to try title and to quiet title based on marketable record title, adverse possession, and adverse possession under color of title. Defendants answered, denied plaintiffs' claims, and asserted counterclaims to quiet title based on superior record title, marketable record title, and slander of title. Plaintiffs filed a reply on 1 December 2000 and denied defendants' right to recover on their counterclaims.
    At trial, the parties presented their evidence and agreed to consecutively submit two issues to the jury; each issue was preceded by its own set of instructions. The first issue required the jury to determine the location of the true boundary line between plaintiffs' and defendants' land. The jury found that the line was located where Mr. Odom marked it on his plat. The second issue required the jury to determine whether plaintiffs established title to the area shown as lappage on their plat by adverse possession. Plaintiffs requested an instruction on establishment of the boundary by acquiescence, but the trial court denied that request. The jury found that plaintiffs had not established title to the lappage area by adverse possession. From the final judgment entered 17 April 2002, plaintiffs appealed.     On appeal, plaintiffs argue the trial court erred by (I) denying their motion for judgment notwithstanding the verdict (JNOV); and (II) refusing to give their requested instruction on establishment of the boundary by acquiescence. For the reasons stated herein, we disagree with plaintiffs' arguments and conclude they received a trial free from error.

     Motion for JNOV
    By their first assignment of error, plaintiffs contend the trial court erred in denying their motion for JNOV because they believe the jury's verdict was contrary to law. Upon review, we disagree.
    Generally, “[t]he verdict of the jury upon conflicting evidence is conclusive” on appeal. Braswell v. Purser, 282 N.C. 388, 394, 193 S.E.2d 90, 94 (1972). When the facts are uncontroverted and the jury returns a verdict contrary to law, it is error for the trial court to deny a motion for JNOV. Robertson v. Stanley, 285 N.C. 561, 564-66, 206 S.E.2d 190, 192-94 (1974). However, “[w]here a verdict is supported by the evidence, denial of the motion to set it aside will not be disturbed.” Beal v. Dellinger, 38 N.C. App. 732, 734, 248 S.E.2d 775, 776 (1978). With these principles in mind, we turn to the facts before us.
    Mr. Wells' survey established the boundary line between plaintiffs' and defendants' land. The lines of Lots 10 and 11 on Mr. Wells' survey were identical to the lines depicted on the original Henry Allan Rose subdivision plat. The key issue in this case is where the boundary line was located and where Mr. Wells setthe iron pin at the lakeshore end of the property. Mr. Wells testified that he used iron pins to mark boundaries once he calculated their locations, and further indicated that his plat accurately reflected his survey:
            Q.    Okay. Now, let me ask you this: Is there a possibility -- let me ask you this way: Do the pins represent the survey or does the survey represent the pins? Which is it?

            A.    [Mr. Wells]: Well, the pins are installed before we leave the field, and the map is then made from the fact that those pins are in a certain location and the map shows that location with reference to the pins.

            * * * *

            Q.    Let me ask you this: You say the pins are set in the ground when you're doing the survey?

            A.    Yes.

            Q.    And then you later create the graph, the map of it?

            A.    Yes.

                    Q.    Is there any way that if the pins were miss-set and not according to what Mr. Hall asked you to do, how would you -- would you be able to discover that when you made your map if there was a mistake?

            A.    If there was a mistake when you made the map, the map wouldn't close.

            Q.    I beg your pardon?

            A.    The map would not close.

            Q.    Is the fact that your map closed indicative of the fact that the pins in the ground are where the map says there [sic] are suppose[d] to be?    

            A.    This map makes reference to ironpins at all corners, and that's one of the rules that we never violated. We did not leave a tract without putting in the iron pins.

            Q.    Okay. Are you satisfied that your map accurately reflects the survey that you actually did on the ground?

            A.    Yes.

    When Mr. Odom prepared his survey, he first had to determine where Mr. Wells' line was located, and did so using the course and distance set out in the deed. Mr. Odom first found Lot 10 (which became Lots 1 and 2 upon its division) by referring to other lots in the subdivision, and described the process as follows:
        So we tied it to those surveys. So based on these surveys, we also located these particular corners here and we located the structures and then after our analysis we came back and using reference bearings derived from this survey up here -- these surveys up here, 2, 3, 4, and 5, survey of Lot No. 12 and survey of Lot No. 13 was surprisingly -- jives. I mean, it matched.

            You take a reference bearing from one side and a reference bearing matched on the other side. And based on that we took reference bearings from these two pins down and when we took the northern line of Ms. Morgan's property, we found an existing iron pin that was 6 feet .53 feet from the lake shore. Then on the other side we took the same reference bearing down. When I say reference bearing, it's based on other surveys, other existing monuments in the area which all seem to match up very, very well. We took the deed bearing based on those references and ran the feet bearing to these points on the lake. And we found this corner that existed at the time.

Mr. Odom gave first priority to locating Lot 10's original lines in the subdivision. This practice is in accordance with the rule that“'course and distance must give way to a call for a natural boundary, and that the line of an adjacent tract, if well known and established, is a natural boundary.'” Trust Co. v. Miller, 243 N.C. 1, 7, 89 S.E.2d 765, 770 (1955) (quoting Lumber Co. v. Hutton, 152 N.C. 537, 540, 68 S.E. 2, 4 (1910)). In every deed in defendants' chain of title, the northeast corner of their lot was described as “the Southeast corner of [Lot 9]” and their northern boundary “runs thence with the [Lot 9] line.”
    When Mr. Odom gave first priority to Lot 10's original lines, he acted in accordance with the intent of the four couples, who wanted to use the original lines of Lot 10 as the outside boundaries and to have a new common boundary determined in relation to the original Lot 10 lines when they divided the property among themselves. The original deed for Lots 10 and 11, purchased by Mr. and Mrs. Lonnie Hall, described the property as “Lots 10 and 11 of the Henry Allan Rose Subdivision.” Mr. Hall stated that he was present when Mr. Wells surveyed the property. With regard to the division of the lots, Mr. Hall testified as follows:
            Q.    Can you remember whether you told him where to put the pins or did you --

            A.    I did not tell them anything of where to put the pins. They put them in theirselves. [sic]

            Q.    You told him to just divide it.

            A.    I did.

            Q.    Pretty much equal.

            A.    Right. No. I didn't tell him to divide it equal. I told him to run theoutside -- outside lines -- the outside lines of each of the hundred foot lots. And then I asked him how about splitting those lots in half.

            Q.    Okay. So each of the two lots --

            A.    So we did not come up with a, say, I'm going to give you 50 feet, or you 40 feet, or anything of that nature.

                    Q.    Okay. I'm just trying to see how you did it. So you had the two lots that you bought --

            A.    We had three lines. An outside line on Lot No. 10 and an outside on Lot No. 11, and one going between 10 and 11.

                    Q.    Forming two lots?

            A.    Right. Forming two lots.

            Q.    Did you ask the surveyor to pretty much divide those two lots equally as much as he could?

            A.    Exactly. Just equally. Right.

When Mr. Odom completed his survey, the northern boundary of defendants' lot was virtually identical to the boundary shown on both Mr. Wells' plat and the Henry Allan Rose subdivision plat.
    Mr. Odom used the course and distance information in the deed to locate the iron pin set by Mr. Wells near the lakeshore. This practice was proper because, in determining a boundary, “course and distance govern unless there be in the deed some more certain description by which one or both may be controlled. The terminus of a line must be either the distance called for in the deed, or some permanent monument which will endure for years, the erection of which was contemporaneous with the execution of the deed.” Brown v. Hodges, 232 N.C. 537, 541, 61 S.E.2d 603, 606-07 (1950), reh'g dismissed, 233 N.C. 617, 65 S.E.2d 144 (1951).
    We note that the “iron pin” described in the deed could conceivably be deemed a controlling monument. However, it cannot serve as a controlling monument in this case because the original iron pin cannot be found. Mr. Odom testified that the area had changed considerably and that the various iron rods and iron pipes located near the lake were not original iron pins. While working on his survey, Mr. Taylor found a solid iron pin set in the seawall next to the boathouse on defendants' land and used it as part of his survey work. However, Mr. Wells testified that the solid iron pin found by Mr. Taylor was not the kind of pin he used when surveying. Mr. Odom, who worked for Mr. Wells for eleven years, testified that Mr. Wells “invariably used iron pipe[,]” rather than solid iron pins.
    Based on the foregoing testimony, it appears the best evidence of the location of the original iron pin set by Mr. Wells is contained in his plat. At trial, plaintiffs argued that Mr. Wells' course and distance stated in the deeds, later relied on by Mr. Odom, was unreliable because Mr. Wells “established the location of the corners on the lake by measuring fifty feet between each corner[,]” causing “a conflict between the distance shown along the lake (fifty feet for each lot) and the bearings shown on the dividing lines between the lots.” However, Mr. Wells testified that he measured fifty feet between each corner along the lake using a series of short lines with individual bearings, rather thana single straight line. Mr. Wells further indicated that his notes of the actual survey would show bearings and distances adding up to fifty feet that would result in the map “closing” in a mathematically correct manner. Mr. Wells agreed that a single straight line measurement might not lead to a mathematically correct result. Mr. Wells' explanation of the fifty feet measurement was consistent with the Henry Allan Rose subdivision plat, which showed a crooked line without a bearing following the shoreline of Lake Lure.
    In addition to the aforementioned evidence which showed that the boundary line existed where the Odom survey depicted it, defendants also presented evidence which called the Taylor survey into question. Although plaintiffs placed great emphasis on the location of the boathouses, Mr. Taylor's survey made no mention of them. Mr. Odom testified that Mr. Taylor took incorrect measurements along the lake and misplaced the southern line of Lot 10 of the Henry Allan Rose subdivision. Additionally, the Taylor survey contained straight line measurements along the lake, beginning at an iron pin pointed out by Mr. Gosnell, the owner of Lot 3. Mr. Taylor then located his corners at similar solid iron pins he found at approximately fifty-foot distances. Mr. Odom also pointed out that straight line measurements resulted in a lake line that was considerably shorter than fifty or one hundred feet. Mr. Odom testified that Mr. Taylor's reliance on the lakeshore measurements was suspect because it was difficult to measure due to the steep embankment and the shoreline itself was in a constantstate of flux. Finally, Mr. Odom testified that the Taylor survey did not correctly locate the dividing line between Lots 10 and 11, as there was a two-degree difference between his survey and the surveys performed by everyone else.
    The crux of plaintiffs' argument is that the four couples who obtained Lots 1, 2, 3, and 4 constructed boathouses and retaining walls immediately after the Wells survey was complete, when the original iron pins and marked line were visible. They maintain that the boathouses are monuments reflecting the location of the boundary line, and that the jury erroneously accepted the testimony of Mr. Odom, who established the lines based on bearings and distances in the deeds, rather than the boathouses and retaining walls (which were built on the lines marked at the time of the original survey). We cannot agree.
    There was a conflict in the evidence as to whether the Taylor survey's location of the boundary line was based on a “marked” line. Plaintiffs argued that the boathouses were monuments of the original markers of Mr. Wells' line and that the Taylor survey was based on the location of the boathouses (indicated by the retaining walls). Mr. Wells testified that he routinely placed stakes in the ground and “hack[ed] the sides” of standing trees to mark lines when he conducted surveys. However, no evidence of such marks on any of the lots was introduced at trial. The uncontroverted testimony indicated that the boathouses were built after the Wells survey was completed. The parties put on contradicting evidence as to the exact location of the boathouses. While plaintiffsmaintained the structures were built on the marked line, defendants argued that Mr. Wells' iron pins were set up on the bank, rather than on the water's edge. The boathouses themselves were built at the lake's edge and extended out into the water. Finally, defendants pointed out that Mr. Hall himself stated he built his boathouse “within a foot or so” of where he believed the boundary line to be, to “[make] sure it was on my property.”
    In sum, defendants presented evidence which indicated that the Odom survey matched the Wells survey, which in turn was based upon the deed descriptions of the lots in question. Defendants also presented evidence which indicated that the Taylor survey relied upon by plaintiffs contained incorrect measurements and was based, at least in part, upon the location of the boathouses, which themselves were not constructed until after the Wells survey. Defendants also pointed out a number of errors they believe Mr. Taylor committed in his survey, including reliance on iron pins which were in irregular locations, straight line measurements along the shoreline, and the difficulty in measuring the shoreline because of the steep embankment. The jury considered the foregoing evidence, placed greater weight on the evidence presented by defendants, and found in their favor. It appears from the record that the jury properly performed its function and returned a verdict supported by the evidence; thus, the trial court did not err in denying plaintiffs' motion for JNOV. Plaintiffs' first assignment of error is overruled.
     Jury Instruction
    By their second assignment of error, plaintiffs contend the trial court erred in denying their request to instruct the jury on the establishment of boundaries by acquiescence. Again, we disagree.
    At the charge conference, plaintiffs requested the following jury instruction:
        [W]here adjoining landowners occupy their respective lands up to a certain line that they mutually recognize and acquiesce in as the boundary line for a long period of time, the landowners and their successors are precluded from claiming that the acquiesced boundary line is not the true one.

The trial court refused to give the instruction. Plaintiffs' requested instruction was taken from Webster's Real Estate Law in North Carolina, § 14-23, Boundaries by Acquiescence, p. 674 (5th ed. 1999).
    The aforementioned instruction was prefaced in Webster's by the caveat “no North Carolina cases specifically address acquiescence[.]” Under the case law of this State, boundaries which are uncertain and controverted may be established based on a line mutually recognized and acquiesced in over a long period of time. Plaintiffs contend that the disputed boundary line in this case cannot be located with certainty based solely on the deed descriptions and the Wells plat because the lots (as described on the deeds and the Wells plat) were incorrectly described. Plaintiffs therefore believe they were entitled to an instruction that boundaries can be established based on a line which the adjoining landowners recognized and acquiesced in as the boundaryline over a long period of time. Plaintiffs argue that “[t]he construction of the boathouses and retaining walls at the southwest corner of each lot, in accordance with the agreement of the four original lot owners, and the recognition of the boundary lines for forty years is such acquiescence in the location of the boundary as should have been considered by the jury in this case.”
    We first note that plaintiffs did not request a separate issue on establishment of the boundary by acquiescence, but instead made their request in conjunction with the adverse possession issue that was submitted to the jury. Plaintiffs first mentioned establishment of the boundary by acquiescence during the charge conference, thereby precluding defendants from addressing acquiescence before or during the trial. Acquiescence was not mentioned in the pleadings, in the pretrial conference, during the charge conference on the issues to be submitted to the jury, or during the charge conference on the first issue to be submitted to the jury. Recognizing that (1) defendants had no notice that the case was being tried on the theory of acquiescence, and (2) that the request for the instruction was a request to expand current North Carolina law, the trial court refused to give the instruction. We discern no error in this decision.    
    The theory of acquiescence is completely independent from deed descriptions. Prior case law indicates that acquiescence is competent to determine the location of marks of the original survey, see McNeill v. Massey, 10 N.C. 91 (1824), and to determine the location of a line described in a deed where the location ofthe line is uncertain. See Kirkpatrick v. McCracken, 161 N.C. 198, 76 S.E. 821 (1912); Boddie v. Bond, 158 N.C. 204, 73 S.E. 988 (1912); and Hanstein v. Ferrall, 149 N.C. 240, 62 S.E. 1070 (1908). However, evidence of acquiescence is not admissible to establish a line not described in the deed. See Davidson v. Arledge, 97 N.C. 172, 2 S.E. 378 (1887).
    In Andrews v. Andrews, 252 N.C. 97, 113 S.E.2d 47 (1960), our Supreme Court stated:
        A multitude of jurisdictions hold that an uncertain and disputed boundary line may, under certain circumstances, be fixed permanently by parol agreement, if accompanied by sufficient acquiescence and possession, but where there is no uncertainty as to the boundary line, a parol agreement fixing a boundary line in disregard of those fixed by the deeds is void under the Statute of Frauds, as it amounts to a conveyance of land by parol. This general rule of law invoked by respondent is not applicable to the facts here, and it is not necessary for us to decide as to whether or not it is in conflict with some of our decisions, for the reason that here there is no uncertainty as to what the true boundary line is, and its true location on the premises can be fixed by the deeds and a survey.

Id. at 102, 113 S.E.2d at 51 (citations omitted) (emphasis in original). The Andrews Court further indicated that, where a boundary line is certain, adjoining landowners cannot change its location by parol agreement alone. We believe that adoption of the theory of acquiescence would create additional uncertainty as to the location of boundary lines and would make deed descriptions unreliable.
    In any event, the true location of the boundary line in thiscase is certain based on the deeds and a survey; therefore, acquiescence is not applicable to the facts before us. See Andrews, 252 N.C. at 102, 113 S.E.2d at 51. Moreover, even if the boundary line was not certain, plaintiffs were still not entitled to an instruction on acquiescence because they did not present sufficient evidence of a marked line -- a necessary element of the theory. The line depicted in the Taylor survey had no physical markings; Mr. Taylor drew his boundary line based on iron pins he found at either end of the lot. Without a marked line, the adjoining landowner has no notice that someone else is laying claim to his land. Finally, defendants' predecessors did nothing to recognize the line proposed by plaintiffs. Plaintiffs were not entitled to an instruction on the theory of acquiescence based on these facts. Accordingly, this assignment of error is overruled.
    Upon careful review of the record, the transcript, the exhibits, and the arguments presented by the parties, we believe the trial court properly denied plaintiffs' motion for JNOV and properly declined to give plaintiffs' proposed instruction on acquiescence. Accordingly, we conclude plaintiffs received a trial free from error.
    No error.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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