Pardue, v. Brinegar, COA08-1367, ___ N.C. App. ___, 681 S.E.2d 435 (2009), August 18, 2009 is a case brought to determine the boundary line between two landowners. The plaintiff owns a tract of land that adjoins a tract owned by the defendants. The plaintiff filed a quiet title action in 2007 in order to determine the true boundary line between the tracts owned by the parties. Both parties claimed to own the entire disputed area which only consisted of a total of 0.79 acre. The plaintiff's chain of title described the boundary along the defendants' tract as follows:

"BEGINNING on a white oak in the old S.P. Smith line and runs up the branch, South 11 ½ degrees West 32 poles to a maple, at the forks of said branch; then South 62 degrees East up the east prong of said branch 56 poles to a post oak on the east side of the public road. " (Emphasis added in the Court of Appeals opinion.)

The defendants' chain of title described the same boundary as follows:

"[From two white oaks in the S.P. Smith line on the west bank of a branch] then South 20 deg.

West up said branch 32 poles to a maple at the fork of the branch; thence South 60 deg. East up the left prong 56 poles to a white oak (now down) on the South side of the public road. " (Emphasis added in the Court of Appeals opinion.)

The parties "agreed that the disputed zone should be bound by the white oak in the S.P. Smith line, the maple at the forks of the branch, and the oak on the public road." The plaintiff's contention was that "up the branch" meant that the boundary between these three markers followed the meanders of the center of the stream, while the defendants' contention was that the boundary followed the straight line segments and "up the branch" only meant the general direction of the line. The Court of Appeals summarized the dispute as follows: "The nature of the boundary line—a branch or straight line segments—was the primary issue at trial." The case went to the jury which was instructed by the trial court as follows:

"Members of the jury, in cases such as this it is a function of the court to determine from the evidence presented a description of the boundary. After I give you the description of the boundary, it is your duty to use this description to locate the true boundary between the lands of the plaintiff and the defendant. I now instruct you that the description of the boundary is as follows:

Beginning on a white oak in the old S.P. Smith line and runs up the branch South 11 ½ degrees

West 32 poles to a maple at the forks of said branch; then South 62 degrees East up the east prong of said branch 56 poles to a post oak on the east side of the public road leading from Wilkesboro to Winston-Salem."

The jury found for the defendants by concluding that the boundary consisted of a straight line segment between the white oak and the forks of the branch, and then continued in another straight line segment from the forks of the branch to the post oak. The plaintiff first appealed to the Court of Appeals which then affirmed the trial court's judgment.

The plaintiff's first argument, of which the Court of Appeals was not persuaded, was that the trial court was wrong in denying her motion for directed verdict and submitting the issue of the boundary location to the jury. The Court felt that the question turned on whether the shape of the boundary was an issue to be determined by the trial court or by the jury. The Court observes that " North Carolina courts have consistently distinguished the role of the jury from the role of the court in matters of boundary location. "The determination of what the boundaries are is a question of law for the court. The location of the boundaries on the ground is a factual question for the jury." Cutts v. Casey, 271 N.C. 165, 167-68, 155 S.E.2d 519, 521 (1967) (emphasis added); see also Brown v. Hodges, 232 N.C. 537, 541, 61 S.E.2d 603, 606 (1950) ("[W]hat constitutes the dividing line is a question of law for the court, but a controversy as to where the line is must be settled by the jury . . . ."); Sherrod v. Battle, 154 N.C. 345, 70 S.E. 834, 837 (1911) ("What are the termini or boundaries of a tract of land, a grant[,] or deed . . . is a matter of law; where these termini are, is a matter of fact.")."

The Court of Appeals apparently misconstrued this doctrine in the present case as it observed that "both parties agreed on the description and location of three markers that outlined the boundary; however, they disagreed on whether the boundary that connected those markers consisted of straight line segments or the meandering path of a creek. The plaintiff contends that the path of the boundary line goes to what constitutes the boundary, and, therefore, is a question of law that should have been determined by the trial court, not the jury. The defendants contend that the path of the boundary is a question of fact because the jury's role is to decide where on the ground a boundary line is, and, therefore, the issue was properly submitted to the jury."

Yet, the opinion states that "both parties had agreed upon the ground location of only three points on the boundary; the ground locations of all remaining points on the boundary were still in dispute. Using the chains of title, the trial court gave instructions describing what the disputed boundary should be: "Beginning on a white oak in the old S.P. Smith line and runs up the branch." It was the jury's job to use this description to determine where the remaining boundary points were located on the ground. The fact that three singular points out of the entire boundary had been agreed upon does not necessarily mean that the entire boundary's ground location flows therefrom. The trial court could have properly allowed the plaintiff's motion for directed verdict only if "the location of th[e] boundary is admitted," or "the location of the declared boundary is uncontroverted by evidence." Brown, 232 N.C. at 541, 61 S.E.2d at 606. That is, a directed verdict is appropriate in boundary disputes only when there is no real factual dispute as to the boundary's ground location, meaning that the issue resolves itself into a question of law. In the present case, however, the full ground location of the boundary had not been admitted, and the evidence of its location was precisely what was in dispute. If the trial court had decided the issue of whether the boundary followed a straight line or a meandering line, then the trial court would necessarily have been determining the controverted factual question of the location on the ground of the boundary, which is a duty specifically in the province of the jury. Cutts, 271 N.C. at 168-69, 155 S.E.2d at 521. Therefore, the location on the ground of the remaining points of the boundary line was properly for the jury's determination." This is a contortion of the issues as clearly the question is not "where is the line", but rather "what is the line" under either parties contentions. Restated; is the line a meander along the stream marked by points or a direct line between these points.

The Court's subsequent analysis leads to the obvious conclusion it reaches once it strayed from the doctrinal path. It seems that the trial court and the Court of Appeals may have placed too much credence in the testimony of the surveyor. The court states that the defendants' surveyor "testified as to two primary reasons why he believed that the boundary was comprised of straight line segments rather than a meandering line following the stream. First, (he) testified that straight line segments would have matched the distances stated on both parties' chains of title to within forty feet; however, if the boundary were meandering, then the distances in the chains of title would have been off by 140 feet. As such, the measurements from the original deeds more closely matched a straight line boundary than a meandering boundary. Second, he testified that the language "up the branch" was not typically used to indicate following the meanderings of a stream. "Normally it would say something like: Thence with the meanders of the stream or branch." In fact, the chains of title did use the term "meanders" in describing the boundary's course along a road, further implying … that, if the original deed had meant for another portion of the boundary to follow a stream, then the deed would have used the term "meanders" in that instance as well. (He) testified that "up the branch" was a term indicating "a general direction" that the boundary followed along a given bearing."

This testimony is a bit conclusory at best and a bit misleading at worst. The misdirection lies in the distance argument. Surveying is a system of straight line measurement. In dealing with curves, a surveyor measures the chord of an arc of curve and calculates the arc when it is drawn. In measuring the sinuous meandering of a stream, points are commonly selected (usually on the bank for convenience in reestablishing them in the future), straight line distances are measured and calls made to approximate the run of the stream. If more points have been established, the approximation of the boundary will be more accurate and, importantly, the more accurate the distance measurement of the boundary. Obviously, with a very curvy stream, fewer points will result in "shorter' distances. In this instance, the surveyors testimony actually better demonstrates this principle rather than the one for which it was offered.

The significance of this misdirection upon the courts' understanding of the problem is made evident where the Court of Appeals states that the "plaintiff heavily relies on Tallahassee Power Co. v. Savage, 170 N.C. 625, 87 S.E. 629 (1916), in support of her argument that 'up the branch' should be read as 'meandering with the branch.' However, Tallahassee states that "[i]t is a leading rule in the construction of all instruments that effect should be given to every part thereof; and, in expounding the descriptions in a deed or grant . . . they ought all to be reconciled if possible, and as far as possible." Id. at 711, 87 S.E. at 631. In the present case, the original deeds listed distances between the agreed-upon points that fit considerably closer if the boundary consists of straight line segments rather than a meandering path; also, the deeds used the word "meanderings" in the context of a road but not in the context of this stream. If we follow Tallahassee's language that effect should be given to every part of an instrument if at all possible, then the uncontroverted distances on the original deed instruments and the selective usage of the word 'meanderings' only add to the defendants' argument that the original instruments called for a straight line boundary when they used the phrases 'up the branch' and 'up said branch.'" When one understands the methodology used to survey meanders and to describe them, the plaintiff's contentions that "'if the intent is not apparent from the deed[,] resort may be had to the general rules of construction." Pelletier, 38 N.C. App. At 536, 248 S.E.2d at 415" are accurate and the court should have understood that, in fact, there was very little "evidence from the original deeds that the boundary was intended to consist of straight line segments…" and the Court should "resort to general rules of construction that the plaintiff also cites at length."

Judge Steelman dissented in a separate opinion with the correct analysis. He first observes that a "deed is to be construed by the court and not by the jury. Wal-Mart Stores, Inc. v. Ingles Mkts., Inc., 158 N.C. App. 414,417, 581 S.E.2d 111, 114 (2003) (quoting Elliott v. Cox, 100 N.C. 536, 538, 397 S.E.2d 319, 320 (1990)). "'The language of the deed being clear and unequivocal, it must be given effect according to its terms, and we may not speculate that the grantor intended otherwise.'" County of Moore v. Humane Soc'y of Moore Cty., Inc., 157 N.C. App. 293, 298, 578 S.E.2d 682, 685 (2003) (quoting Southern Furniture Co. v. Dep't of Transp., 133 N.C. App. 400, 403, 516 S.E.2d 383, 386 (1999)). Ordinary terms contained in a deed must be given their plain meaning. Id." This observation is most significant in that it goes directly to the issue of whether the case goes to the jury as we noted above. He continues:

"The language of the deeds in the chain of title for both the property of plaintiff and defendants states the boundary line runs 'up the branch' and not in two straight lines between the three undisputed markers. The terms must be given effect according to their plain meaning, and the grantors intended for the branch or stream to be the dividing line between the two properties. "'The Court considers it settled upon authority that up the river is the same as along the river, unless there be something else beside course and distance to control it.'" Tallassee Power Company v. C.W. Savage et al., 170 N.C. 625, 630, 87 S.E. 629, 631 (1916) (citation omitted). According to the express language contained in the deed, the grantors intended for the boundary line to run along the branch." It may be fair to state that this doctrine is so well established that many practitioners reading the opinion will find themselves wondering how this case came to require appellate consideration.

The dissenting opinion spells out the controlling element of the well established doctrine in North Carolina law concerning the hierarchy of descriptive terms: "The grantors' description of the branch as the boundary controls over the distances mentioned in the deed. In the cases cited by the majority, the call for a permanent natural monument controls the boundary, rather than any distance contained in the deed. Cutts v. Casey, 271 N.C. 165, 170, 155 S.E.2d 519, 522 (1967); Brown v. Hodges, 232 N.C. 537, 541, 61 S.E.2d 603, 606 (1950). The boundary begins at 'a white oak . . . and runs up the branch . . . to a maple, at the forks of said branch." Then, from the maple "up the east prong of said branch . . . to a post oak.' The branch is a permanent natural monument, which the grantors described in the deeds. This description unequivocally established the branch as the natural boundary between the two properties. '

Judge Steelman concludes that the determination of whether the stream was the boundary or the direct line calls described the boundary was a matter of law for the court to decide, not the jury. In his view "the boundary line in dispute followed the path of the stream according to the express language contained in the deeds of both parties. The trial court should have granted plaintiff's motion for directed verdict at the close of all the evidence, and should not have submitted the case to the jury. The judgment of the trial court should be reversed, and the case remanded to the District Court of Wilkes County for entry of judgment in favor of the plaintiff."

As a result of the split decision, the case was appealed to the North Carolina Supreme Court in case No. 387A09. The Supreme Court ruled in a per curiam opinion filed on January 29, 2010 where it adopted the dissenting opinion, reversed the Court of Appeals and remanded the case to that court for further remand to the trial court for entry of judgment for plaintiff. The decision will permit title examiners to continue to rely on traditional doctrine when interpreting property descriptions and may serve as a cautionary tale concerning undue reliance on "experts" whose grounding in the applicable law might have been more strictly examined before being permitted to testify in a boundary case.