
    R. H. GARRIS et als. v. A. L. HARRINGTON et als.
    (Filed 21 October, 1914.)
    Trials — Dividing Boundaries — Burden of Proof.
    Tbe burden of proof is on tbe movant or plaintiff, in proceedings to establish tbe true dividing line between bis own lands and those of adjoining owners, which is not affected by tbe fact tbat tbe defendant sets up another line as the true one; and an instruction tbat puts tbe burden of proof on plaintiff to establish tbe line contended for by him, and upon tbe defendant to establish tbe line be claims, is reversible error as to tbe latter.
    Appeal by defendants from Daniels, J:, at April Term, 1914, of Pitt.
    Tbis is a proceeding to establish tbe dividing line between tbe plaintiff and defendant.
    Tbe plaintiff contends tbat tbe true line is from A to B on tbe plat, and tbe defendant, tbat it is from 0 to A, tbe land in dispute being a triangle between tbe lines A B and A C.
    Botb parties introduced evidence to sustain tbeir contentions.
    Tbe jury returned tbe following verdict:
    “1. What is tbe true dividing line between tbe plaintiffs and defendant ? Answer: ‘A B.’
    
      “2. Have tbe defendants been in possession of tbe lands lying south of tbe line indicated by £0 to A’ for more than seven years, adversely, under color of title ? Answer: ‘Nod
    “3. Have tbe defendants been in possession of tbe lands lying south of tbe line indicated by £C to A,’ adversely, for more than twenty years ? Answer: ‘Nod ”
    His Honor charged tbe jury, among other things: “If tbe evidence satisfies you by‘its greater weight, tbe burden being upon tbe plaintiff to establish tbe line as contended for by him, tbat tbis ash was established as a corner at tbat time and marked, and tbat a line was run and marked from tbat point north 77 west 66% chains with tbe intention and purpose of making tbat tbe dividing line between tbe two tracts, then your answer to tbat issue would be tbe line ‘A to B’; tbat would be finding tbat tbe plaintiffs’ contention is tbe true dividing line.”
    And again: “The defendant contends tbat upon tbat evidence you ought to be satisfied tbat tbe true dividing line established at the time these lands were divided was tbe line C to A. Tbe burden is upon him to satisfy you by tbe greater weight of the testimony of tbe truth of bis contention; and if be has, you will find tbat tbe true dividing line and answer tbis issue C to A.” Tbe defendant excepted.
    There was a judgment in favor of tbe plaintiff, and tbe defendant ' excepted and appealed.
    
      
      
    
    
      
      Harding & Pierce and F. G. James & Son for plaintiff.
    
    
      D. M. Gloríe, Harry Slcinner, and L. G. Cooper for defendant.
    
   AlleN, J.

The plaintiff became the actor, and assumed the burden of proof to establish the true line between him and the defendant, when he instituted the proceeding (Hill v. Dalton, 140 N. C., 9), and this burden of proof did not shift to the defendant because, in addition to denying the line to be as claimed by the plaintiff, he alleged another to be the dividing line.

The precise question was considered and decided in Woody v. Fountain, 143 N. C., 66. In that case, which was a proceeding to establish a dividing line, the plaintiff alleged the true line to be at a certain place. This was denied by the defendant, and he alleged the true line to be at another place. The issue submitted to the jury was like the one in the record before us, and it was held to be error to charge the jury that “If they should find from the greater weight of the evidence in this case that the original and true line between the plaintiff and defendant is as claimed by defendant, then you will answer this issue (as to boundary) in his favor,” the Court saying of this instruction: “This was, in effect, telling the jury that the issue could not be answered in the defendant’s favor unless they found the greater weight on his side: The burden of proof is on the plaintiff to establish the line contended for by her. Hill v. Dalton, 136 N. C., 339; s. c., 140 N. C., 9.”

The charge given cannot be distinguished from the one declared to be erroneous, and there must therefore be a

New trial.  