HILL v. Dalton. part of the defendant, declared to be the true line. Upon this contention the enquiry arises, what is necessary for the plainHe says, that having shown he may locate according to This presents the question, tiff to show to locate his grant. the beginning point to be at A, the calls by course and distance. what are the calls in the grant, and thus we reach the real question raised by His Honor's charge and the exception thereto. His Honor's opinion was that the controlling call in the first and second line is the McKaughan grant. In Cherry v. Slade, 7 N. C., 82, Chief Justice Taylor examined the cases decided prior to 1819 and carefully reviews them in an able and exhaustive opinion. He discusses the history and reasons upon which the court had proceeded in questions of boundary where there is a variance between the calls for course and distance and natural objects or lines of other tracts of land. Without undertaking to do more than refer to this "mine of learning," we find that the rules there announced have been uniformly followed by this court. "That whenever a natural boundary is called for in a patent or deed, the line is to terminate at it, however wide of the course called for it may be, or however short or beyond the distance specified. The course and distance may be incorrect from any one of the numerous causes likely to generate error on such a subject; but a natural object is fixed and permanent, and its being called for in the deed or patent, marks beyond controversy the intention of the party to select that land from the unappropriated mass." There is a second rule which makes an exception to the first. "Whenever it can be proved that there was a line actually run by the surveyor, was marked and a corner made, the party claiming under the patent or deed shall hold accordingly, notwithstanding a mistaken description of the land." The rule is stated in Gilchrist v. McLaughlin, 29 N. C., 310: "When another line is called for and distance gives out before reaching the line called for, the distance is to be disregarded." Jefferson v. McGhee, 34 HILL v. DALTON. PROCEEDING by J. H. Hill against Thornton Dalton and others, brought before the Clerk of the Superior Court and heard upon appeal by Judge Chas. M. Cooke and a jury, at the March Term, 1905, of the Superior Court of FORSYTH. From a judgment for the defendants, the plaintiff appealed. Manly & Hendren and Watson & Buxton for the plaintiff. Lindsay Patterson for the defendants. CONNOR, J. This is a proceeding instituted pursuant to the provisions of chapter 48 of The Code, as amended by chapter 22, Laws 1893, commonly known as "The Processioning Act." The case was before us on appeal at the Fall Term, 1904, reported in 136 N. C., 339. The proceeding was conducted through its several statutory stages until it reached the Superior Court, and was then tried upon a single issue directed to the inquiry in respect to the true line of plaintiff's land. It would be difficult to state the contentions upon which the exceptions to His Honor's rulings are based, without reference to the map which was in evidence. Plaintiff introduced a grant to John Rights, bearing date January 14, 1795, describing a tract of 200 acres. "Beginning at a pine, Jacob Blum's corner, east with his line 57 chains to a white oak in James McKaughan's line, south 35 chains and 9 links crossing two branches to pointers in said McKaughan's line, west 57 chains to a stake, north 35 chains, 9 links to the beginning." Plaintiff introduced several deeds conveying said land, by the same description, until the title vested in A. D. McCumbie; he then showed mortgage deed from McCumbie to Belo, containing covenants of seizin, against encumbrances and general warranty; deed from Belo to plaintiff; all of said deeds containing same description. There was evidence, in respect to which there was no controversy, that the Rights grant began at the S. W. corner of the Jacob Blum grant located by the surveyor at a stone on the HILL v. DALTON. map at A. It was also shown that the 57 chains in the first call gave out at B; that there was a small black gum at that point. Those defendants, claiming under the McKaughan grant, introduced a grant to James McKaughan bearing date November 9, 1784. This grant covered 460 acres. "Beginning at a pine on the west side of the creek, running north 93 chains to a pine, east 4911⁄2 chains to a black oak, south 93 chains to a pine, then west to the beginning." There was evidence tending to show the location of the grant as appears on the map, W Q N M. Plaintiff denied that the McKaughan grant was correctly located. There was evidence tending to sustain plaintiff's contention in this respect. Plaintiff insisted that he was not called upon to locate the McKaughan grant, although called for by the Rights grant; that as defendants claimed under the grant, the burden was upon them to locate it; that if they failed to do so, he was entitled to locate his land according to the course and distance, disregarding the objects called for. If plaintiff is correct in his contention, his true lines would be A, B, C, D, thence to the beginning. His Honor instructed the jury: "That the burden was on the plaintiff to establish the true boundary in dispute between the parties. That as the grant under which plaintiff claimed called from it beginning point east 57 chains to McKaughan's line, the burden was on the plaintiff to establish by a preponderance of the evidence the true boundary line of the McKaughan grant." The court stated the same proposition in other forms and declined to give an instruction asked by plaintiff, putting the burden upon the defendant. Plaintiff's exceptions present the question whether there was error in the instruction given and in refusing that asked. Upon the former appeal this question was not presented or argued. We did not otherwise decide it than to say: "As the plaintiff is the actor, it would seem that the burden is on him to make good his contention." As the question is now fairly presented and has been argued, we HILL v. DALTON. deem it proper to treat it as open and endeavor to lay down the rule for guidance in like cases in the future. In those cases which have been before this court involving the construction of the statute, we do not find any expression of opinion regarding the rule of practice in this respect. The proposition, that the party holding the affirmative of the issue carries the laboring oar, or has the burden of making good his allegation, is elementary. He meets this requirement by introducing testimony, which the court deems sufficient to take the case to the jury. He may, in certain cases, after the introduction of testimony, rely upon any presumption which the law raises and which becomes evidence from which, unless rebutted, he may call for a verdict. These principles are all of common knowledge and illustrated in practice by numerous cases in our reports. The only question is the extent and manner of their application to this unique proceeding with which we are dealing. In the absence of any authority, courts are compelled to resort to "the reason of the thing." It is impracticable, if not impossible, to try and determine controversies of fact without adopting some principle or rule for determining which of the parties shall first produce testimony, or, in the language of the books, "go forward." 1 Greenleaf, sec. 14; Thayer on Ev., 353. If no evidence has been produced, it is clear that the court would have instructed the jury to find the issue against the plaintiff, that is, that he had not established his line. It behooved him, if he would persuade the jury to find the fact to be as alleged, to introduce evidence. Therefore, in the ordinary acceptance of the term, and, as generally understood in practice, the burden of proof was upon him. We see no reason why the general rule should not apply in a proceeding instituted to establish a disputed line. The plaintiff says, conceding this to be true, he was only required to locate his land according to the calls in his grant; that he was entitled to have the lines called for in the absence of any evidence on the HILL v. DALTON. part of the defendant, declared to be the true line. Upon this contention the enquiry arises, what is necessary for the plaintiff to show to locate his grant. He says, that having shown the beginning point to be at A, he may locate according to the calls by course and distance. This presents the question, what are the calls in the grant, and thus we reach the real question raised by His Honor's charge and the exception thereto. His Honor's opinion was that the controlling call in the first and second line is the McKaughan grant. In Cherry v. Slade, 7 N. C., 82, Chief Justice Taylor examined the cases decided prior to 1819 and carefully reviews them in an able and exhaustive opinion. He discusses the history and reasons upon which the court had proceeded in questions of boundary where there is a variance between the calls for course and distance and natural objects or lines of other tracts of land. Without undertaking to do more than refer to this "mine of learning," we find that the rules there announced have been uniformly followed by this court. "That whenever a natural boundary is called for in a patent or deed, the line is to terminate at it, however wide of the course called for it may be, or however short or beyond the distance specified. The course and distance may be incorrect from any one of the numerous causes likely to generate error on such a subject; but a natural object is fixed and permanent, and its being called for in the deed or patent, marks beyond controversy the intention of the party to select that land from the unappropriated mass." There is a second rule which makes an exception to the first. "Whenever it can be proved that there was a line actually run by the surveyor, was marked and a corner made, the party claiming under the patent or deed shall hold accordingly, notwithstanding a mistaken description of the land." The rule is stated in Gilchrist v. McLaughlin, 29 N. C., 310: "When another line is called for and distance gives out before reaching the line called for, the distance is to be disregarded." Jefferson v. McGhee, 34 |