SUE KING, on behalf of the
ALICE HEARD Heirs and BERTHINA
G. PALMER, on behalf of the L.
No. 01 CVS 3960
POPKINS AND ASSOCIATES,
ENTERPRISES, INC., and THE
STATE OF NORTH CAROLINA,
Janine W. Dunn for plaintiffs-appellants.
Ellis, Hooper, Warlick, & Morgan, L.L.P., by Victor H.E. Morgan, Jr., for defendant-appellees Popkins and Associates and Popkins Brothers Enterprises, Inc.
Attorney General Roy Cooper, by Assistant Attorney General James M. Stanley, Jr., for the State.
Sue King on behalf of Alice Heard heirs and Berthina Palmer on behalf of L. Gray heirs (collectively plaintiffs) filed an action to quiet title and to obtain recovery for cut timber againstPopkins and Associates, Popkins Brothers Enterprises, Inc. and the State of North Carolina, successors in interest (defendants). Pursuant to its motion, the trial court granted summary judgment in favor of defendants. Plaintiffs appeal.
This case involves a dispute regarding the location of a common boundary between property owned by plaintiffs and property owned by defendants (See footnote 1) . The common boundary, which lies between plaintiffs' property to the west and defendant's property to the east is a stream known as the Big Branch.
The Alice Heard heirs are the owners of the property (See footnote 2) described as follows:
BOUNDED ON THE (sic) Westerly side by the Old Burns Road, bounded on the Northerly (or Northwesterly) side by a lot or strip of land conveyed by Thomas B. Koonce to Carrie Gray, bounded on the easterly side by Big Branch, being Tract No. 1 of Thomas B. Koonce land at Bell's Fork as shown by a map made by R.E. Koonce, C.E., dated May 30, 1941, and recorded in Book of Maps No. 1 at Page 159, Onslow County Registry, and being more particularly bounded by a line beginning at point on theEasterly side of Old Burns Road at the most Southerly corner of Tract No. 2, as shown by the map above referred; runs thence, along the Southerly side of Tract No. 2 (now owned by Carrie Gray), North 58 Degrees 30 Minutes East 740 Feet more or less to a point on Big Branch; runs thence with the line of Big Branch, 760 Feet, be that distance more or less, the most Southerly corner of Lot No. 1 as shown by said map; running thence North 65 Degrees West 430 Feet to the Old Burns Road, North 31 Degrees 30 Minutes West 134 Feet to the point of BEGINNING (sic); containing 5 acres more or less.
The L. Gray heirs are the owners of the property (See footnote 3) described as follows:
Bounded on the westerly side or end by the Old Burns Road and on the easterly side or end by the Big Branch, being the southerly half (approximated as to acreage rather than by width of road frontage) of Tract No. 2 of Thomas B. Koonce lands at Bell's Fork as is more particularly pictured and shown by a map made by R.E. Koonce, Engineer, dated May 30, 1941, and appearing of record in book of Maps 1, at Page 159, Onslow County Registry, and more particularly bounded by a line BEGINNING (sic) at a point on the easterly side of the Old Burns Road at the most southerly corner of Tract No. 2 and the most westerly corner of Tract No. 1 as shown by the map above referred to; running thence with the Old Burns Road North 31 degrees 30 minutes West 127 feet to the most southerly corner of the tract of landconveyed by Thomas B. Koonce and wife to Lillie Rayner; running thence with the line of said Lillie Rayner North 58 degrees 30 minutes East 645 feet, be that distance more or less, to a point at or in Big Branch; running thence with Big Branch, as the same meanders, in a southerly direction 165 feet, be that distance more or less, to the most northerly corner (in said Branch) of Tract No. 1 as shown by the map above referred to; running thence with the northerly line of said Tract No. 1 south 58 degrees 30 minutes West 740 feet to the point of beginning; containing 2-1/2 acres, more or less, and being a small part of that tract of land which was conveyed by L.D. Sewell to Thomas B. Koonce by a deed which is recorded in Book 132, at Page 600, in the office of the Register of Deeds of Onlsow County, North Carolina, and was conveyed by Thomas B. Koonce and wife to the said Carrie Gray by a deed dated March 22, 1944. The beginning point above referred to is 1487 feet in the direction of South 31 degrees 30 minutes east from the present intersection of the Old Burns Road with the old Jacksonville-New Bern Road.
Surveryor Henry Corbett was first contacted to conduct a survey of these two parcels of land in 1993 by Berthina Gray Palmer. On 10 April 1994 Corbett prepared a survey map of the above-described L. Gray heir property for Berthina Gray Palmer. In preparing a sketch based upon review of the existing plats and deeds of the adjoining land, Corbett determined that the natural monument called Big Branch served as the natural boundary between Palmer property and Popkins property. In preparing the actual physical survey of the Palmer property, Corbett found a ditch in the area and considered it to be the bed of Big Branch. A survey of the Popkin property prepared by surveyor Barden Lanier on 28 November 1995 also showed Big Branch as a boundary line between the properties.
On 22 June 1995 Corbett prepared a survey map of the Alice Heard heirs' property for Mable Phifer (Phifer). On 12 September 1998 he prepared a second survey map for Alice M. Heard. Because the metes and bounds description in the original deeds dated 31 May 1941 did not coincide with the location of Big Branch, the Corbett surveys in effect reduced the Heard heirs' acreage from 2.5 to 1.59 acres and the Gray heirs' acreage from 5.0 to 3.6 acres.
Corbett prepared revised survey maps for Palmer, Heard and Phifer on 15 September and 1 November 1998. Those maps contained calls for metes and bounds descriptions as well as the call for Big Branch. Corbett noted on the revised survey maps that there were areas or lines of contention, areas where Big Branch did not coincide with the metes and bounds descriptions.
On 29 November 2001 plaintiffs filed action to quiet title and set aside deeds on the grounds that plaintiffs are the actual owners of the disputed property.
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