              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-379

                              Filed: 18 December 2018

Bertie County, No. 14 CVS 45

EMILY URQUHART AYSCUE, THOMAS MIZELL URQUHART, JR. AND BETSEY
DERR URQUHART, Plaintiffs,

             v.

BURGES URQUHART GRIFFIN, JR. AND LOWGROUNDS LAND CO., LLC,
Defendants.


      Appeal by plaintiffs from orders entered 1 December 2017 and 9 January 2018

by Judge Cy A. Grant in Bertie County Superior Court. Heard in the Court of Appeals

31 October 2018.


      Batts, Batts & Bell, LLP, by Joseph G. McKellar and Joseph L. Bell, Jr., for
      plaintiff-appellant Emily Urquhart Ayscue.

      Jones & Carter, P.A., by Ernest R. Carter, Jr. and Cecelia D. M. Jones, for
      defendant-appellees.


      TYSON, Judge.


      Emily Urquhart Ayscue (“Ayscue”) appeals from an order determining the

location of the boundary division line between her property and an adjoining tract.

Ayscue also appeals from an order denying her Rule 60 motion for reconsideration.

See N.C. Gen. Stat. § 1A-1, Rule 60 (2017).

                                   I. Background
                                  AYSCUE V. GRIFFIN

                                   Opinion of the Court



      This case concerns a disputed boundary line between neighboring tracts of real

property, both of which are located along a portion of the Roanoke River. Ayscue,

Thomas Mizell Urquhart, Jr., and Betsey Derr Urquhart (collectively, “Plaintiffs”)

own one tract as tenants-in-common and an adjoining tract is owned by Lowgrounds

Land Co., LLC (“Lowgrounds”), a North Carolina limited liability company. Burges

Urquhart Griffin, Jr. is a member/manager of Lowgrounds.            Plaintiffs and the

individual defendant, Griffin, are family members.

        Both Plaintiffs’ and Defendants’ tracts were originally portions of the estate

of Burges Urquhart, who died in 1903. Plaintiffs and Griffin are descendants of

Burges Urquhart. Upon Burges Urquhart’s death, his real property was divided

among his five children. Burges Urquhart’s real property was divided through a plat

map of the entire property prepared by surveyor, William Parker, and dated 5

December 1905 (“the Parker Plat”). The Parker Plat was filed in the Bertie County

Registry and is recorded at Book 138, Page 183.

      In 1965, L.T. Livermon, Jr., R.L.S., drew a new map of the Burges Urquhart

tracts shown on the Parker Plat without re-surveying the property and recorded his

map in the Bertie County Registry at Map Book 2, Page 106 (“the Livermon Map”).

The 1965 Livermon Map includes an express disclaimer: “There was no error of

closure calculated.” It is unclear if the boundary lines of the respective tracts shown,




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                                    Opinion of the Court



including the subject properties, as depicted on the 1965 Livermon Map actually

close.

         In 2013, Plaintiffs hired surveyor Mark Pruden, R.L.S, to prepare a survey of

the disputed boundary line as shown on the Parker Plat. Pruden conducted an initial

survey and then a corrected version (“The Pruden Survey”). The Pruden Survey is

recorded in the Bertie County Registry at Map Book 13, Page 820. The Pruden

Survey displays the boundary line between the parties’ properties lying between two

points east of a pond called “Blue Hole.” Pruden testified in a deposition that he had

determined the boundary line of the respective tracts by using the same bearing as

the boundary line on the 1905 Parker Plat. The Pruden Survey depicts the common

boundary line of the respective properties as having the bearing of N 27°30’00’’ W,

which is equivalent to the bearing of “S 27 ½ E” for the boundary line shown on the

Parker Plat. The Pruden Survey does not depict the boundaries of all of Plaintiffs’

and Defendants’ properties, does not demonstrate any error of closure, and shows

only the disputed boundary line and southern border of Plaintiffs’ property. Pruden’s

testimony does not indicate he surveyed each of the parties’ tracts in their entirety.

         Defendants hired surveyor, Randy Nicholson, R.L.S., to map the location of the

boundary line in late 2013.       Nicholson’s map (“the Nicholson Map”) shows the

purported boundary line as contended by Plaintiffs and Pruden. The Nicholson Map




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                                  Opinion of the Court



indicates and locates the actual boundary line as lying between two points situated

west of the boundary line shown on the Pruden Survey and as contended by Plaintiffs.

       On 26 February 2014, Plaintiffs filed a complaint alleging Defendants “came

onto Plaintiffs’ property without permission and cut down trees and other vegetation

on approximately three and one half acres . . . of Plaintiffs’ property near the

boundary line between Plaintiffs’ and Defendant Lowgrounds’s property” shortly

before April 2013.

       Plaintiffs’ complaint asserts claims for quiet title, trespass to land, and

recovery of statutory double damages for “the value of the timber, shrubs, wood and

trees injured, cut or removed from their [p]roperty” pursuant to N.C. Gen. Stat. § 1-

539.1. Plaintiffs’ complaint demands “a jury trial on all issues of fact to which they

are so entitled.”

       Defendants filed their answer and asserted, in part, that the property

Plaintiffs’ alleged Defendants trespassed upon is actually owned by Lowgrounds.

Defendants also demanded in their answer “a jury trial on all issues of fact to which

they are so entitled.”

       On 11 March 2015, the trial court entered a consent order (“the Consent

Order”) to appoint surveyor Paul Toti, R.L.S., to “go upon the lands, find, mark and

prepare a plat showing where on the ground said boundary lines exist” as shown on

the Parker Plat. (Emphasis supplied). The Consent Order provides, in relevant part:



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                                  Opinion of the Court



“The parties agree that the survey, when completed may be used by the Court in

determining the issues presented in the instant action.”

      On 1 July 2016, before Toti had completed his survey, Plaintiffs filed a motion

in limine to request an order instructing Toti to disregard the Nicholson Map in

preparing his survey. Plaintiffs argued the line depicted on the Nicholson Map, which

Defendants contend is the correct line, was based upon incompetent evidence, which

Toti should not have considered in conducting his survey.

      Plaintiffs alleged that Toti presumed that the Nicholson Map was prepared by

Nicholson after conducting an actual survey.        Plaintiffs attached the deposition

transcript of Nicholson to their motion in limine and argued Nicholson did not

perform an “actual survey” to prepare his map, They assert Nicholson located and

mapped the physical markings, stakes, and paint marks on trees that he had found

and located in the field.

       On 7 November 2016, the trial court entered an order concluding Plaintiffs’

motion in limine was premature because Toti had not yet completed his survey, and

dismissed their motion without prejudice. The trial court’s order further stated:

“THAT upon the filing of said Toti Survey, should plaintiffs’ determine that their

motion should then be heard, the Court will entertain plaintiffs’ motion at that time.”

      After Toti had completed and presented his survey, Plaintiffs re-filed their

motion in limine and the trial court held a hearing on 16 March 2017. At the hearing,



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                                   Opinion of the Court



the court heard the testimony of Thomas Mizell Urquhart, Jr., and Toti. At the

conclusion of the hearing, without ruling upon Plaintiffs’ motion in limine, the trial

court orally rendered a ruling that the boundary line advocated by Defendants, as

shown on the Nicholson Map, was the correct boundary line between the parties’

properties.

      The trial court entered a written order on 1 December 2017, determining the

final division boundary line between the parties’ properties (“the Division Order”).

The trial court made, in part, the following findings of fact:

              1. That pursuant to the Order of the court entered in this
              matter by consent of the parties, Paul J. Toti, obtained
              documents related to the assignment made in the Order
              from the records available at the Courthouse in Bertie
              County, including copies of the 1905 Parker Map as
              recorded in the office of the Register of Deeds of Bertie
              County . . . and other maps recorded in the office of the
              Register of Deeds of Bertie County prepared by Mark
              Pruden and Randolph Nicholson, both surveyors
              previously employed by the opposing parties in this matter.

              2. That as a result of the research and the documents
              procured by Paul J. Toti, particularly relative to the order
              to conduct a survey of the real property shown on the 1905
              Parker Map relative to the properties owned by the parties
              known as “No. 1 Gorden Land” and “No. 2 Gorden
              Land”(hereinafter the Property) and to go upon the lands
              and find, mark, and prepare a new plat showing where on
              the ground said boundary lines exist as depicted in the
              1905 Parker Map, Paul J. Toti did go upon the lands and
              did, using his knowledge and skills as a registered land
              surveyor, attempt to comply with the Order by providing to
              the Court a map of his survey and he did file and submit to
              the Court such map of his survey of the subject Property,


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                     Opinion of the Court



hereinafter termed Court Ordered Survey, showing
thereon, in addition to exterior boundary lines of the whole
tract as it currently exists, but also indicating thereon, two
distinct sets of courses and distances which the parties, on
maps filed by Pruden and Nicholson, have contended to be
the correct division boundary between the properties of the
parties[.] (Emphasis supplied).

3. That in the process of completing the work assigned by
the Court, Toti was not able to re-create the 1905 map in
large part because of deficiencies with certain portions of
that map that omitted distances, courses, and other
matters that would have provided clear and documented
evidence of the division line in question, particularly his
inability to locate the “warehouse” which was noted on the
1905 [Parker] map as a relevant physical monument for
the division line in question.

4. That in the review of the Pruden maps and Nicholson
maps, relative to the process, Toti indicated that while the
Pruden maps were mathematically correct, they were not
surveys of the relevant tracts and they did not attempt to
“close” or otherwise graphically resolve the issues that
were obvious from the deficiencies found in attempting to
re-create on the ground the 1905 map as directed to him in
the Court’s prior order.

5. That Toti stated that in his professional opinion, the
Nicholson map of the property of the Defendant,
Lowgrounds Land Co., LLC, was a graphically correct
representation of the 1905 map and the division line
between the tracts identified thereon as “No. 1 Gorden
Land” and “No. 2 Gorden Land”, and that the
monumentation that was found by Toti while in the act of
surveying the properties on site, as noted on the Court
Ordered Survey provided to the Court in this matter, and
the “graphic” match of the 1905 map to his graphic
representation on the Court Ordered Survey, lead to his
conclusion that the line represented on the Court Ordered
Survey with points marked “G” to “C” is the proper division


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                      Opinion of the Court



line of the properties identified on the 1905 map as “No. 1
Gorden Land” and “No. 2 Gorden Land”.

6. That Toti stated that in his professional opinion, after
completion of the work necessary to prepare the Court
Ordered [S]urvey provided to the Court in this matter, as
a surveyor, he was bound to try to reconcile all of the
evidence that was available and that based upon his review
of the proceedings from which the 1905 map arose, the
notations that appeared on such map, the use of the
properties with regard to location of croplands and visible
growth lines of trees where the properties had been
timbered, it was his opinion that the line he had marked as
“G” to “C” reflected the intention of the predecessors in title
to divide the tracts indicated thereon as “No. 1 Gorden
Land” and “No. 2 Gorden Land” into two tracts of nearly
equal acreage in spite of the fact that the current relative
acreage of the tracts owned by the Plaintiffs and Defendant,
Lowgrounds Land Co., LLC, are no longer equal.
(Emphasis supplied).

7. That based upon the testimony and exhibits presented by
Toti, the Court finds that the line which is marked “G” to
“C” on the Court Ordered [S]urvey provided to the Court in
this matter by the Court surveyor, is the division line
between the properties of the Plaintiffs and the Defendants
for purposes of this proceeding. (Emphasis supplied).

...

Based on the foregoing Findings of Fact, the Court
concludes that it has jurisdiction to enter an order in this
matter, and in the exercise of its judicial discretion, the
Court concludes that the Court Ordered [S]urvey rendered
to this Court in this matter by Paul Toti, which survey is
incorporated herein by this reference, property reflects the
properties directed to be surveyed by the prior Consent
Order in this matter, and that the line marked thereon
represented as lying between the points marked “G” to “C”
is the division line between the properties of the Plaintiffs


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                                   Opinion of the Court



             and the Defendants for purposes of this proceeding.

      Also, based upon its findings of fact and the Toti Survey, the trial court decreed

that the purported boundary line depicted on the Nicholson Map, which is the line

advocated by Defendants, was the division line between the parties’ properties.

      Plaintiffs filed a Rule 60 motion for reconsideration of the trial court’s Division

Order determining the division line. See N.C. Gen. Stat. § 1A-1, Rule 60. In their

motion for reconsideration, Plaintiffs contended the trial court improperly converted

the hearing on their motion in limine into a bench trial without prior and proper

notice. Plaintiffs’ motion for reconsideration also asserted that the Division Order

foreclosed a hearing on their motion in limine as well as a jury trial on the ultimate

issues of fact and their remaining claims.

      A hearing was conducted upon Plaintiffs’ motion for reconsideration. On 9

January 2018, the trial court denied the motion for reconsideration. Ayscue filed

notice of appeal of the trial court’s order determining the final division line. All

Plaintiffs, including Ayscue, filed notices of appeal of the trial court’s order denying

their motion for reconsideration. Only Ayscue filed an appellant brief with this Court.

                                    II. Jurisdiction

      Ayscue contends the trial court’s Division Order and order denying Plaintiffs’

motion for reconsideration “have effectively mooted Plaintiffs’ claims, disposed of all

issues, and obviated the need for a jury trial, and thus these Orders operate as a final



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judgment.” The orders appealed from do not expressly or directly address Plaintiffs’

claims for quiet title, trespass to land, and associated claims for punitive and

statutory double damages; however, Plaintiffs’ claims asserted in their complaint are

all premised upon Plaintiffs’ allegations that Defendants’ were trespassing and

foresting, injuring, cutting, or removing timber, shrubs, woods, and trees upon

Plaintiffs’ property. The trial court did not certify the orders for immediate appeal.

See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2017). As the trial court’s orders did not

expressly rule upon or dispose of Plaintiffs’ claims, Ayscue’s appeal is subject to

challenge for being interlocutory. Defendants do not raise this issue in their brief nor

have they filed a motion to dismiss Ayscue’s appeal.

      “An interlocutory order is one made during the pendency of an action, which

does not dispose of the case, but leaves it for further action by the trial court in order

to settle and determine the entire controversy.” Veazey v. Durham, 231 N.C. 357, 362,

57 S.E.2d 377, 381 (1950) (citation omitted). Generally, there is no right to an

immediate appeal of an interlocutory order. Goldston v. American Motors Corp., 326

N.C. 723, 725, 392 S.E.2d 735, 736 (1990).

      However, “immediate appeal is available from an interlocutory order . . . which

affects a substantial right.” Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577,

579 (1999) (quotation marks omitted); see also N.C. Gen. Stat. §§ 1-277(a) and 7A-

27(b)(3)(a) (2017). In determining the appealability of interlocutory orders under the



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substantial right exception, we utilize a two-part test: (1) “the right itself must be

‘substantial,’” and (2) “the enforcement of the substantial right must be lost,

prejudiced or be less than adequately protected by exception to entry of the

interlocutory order.” J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App.

1, 5-6, 362 S.E.2d 812, 815 (1987). “The right to a jury trial is a substantial right of

great significance.” Mathias v. Brumsey, 27 N.C. App. 558, 560, 219 S.E.2d 646, 647

(1975), disc. review denied, 289 N.C. 140, 220 S.E.2d 798 (1976).

       The trial court’s Division Order has effectively mooted all of Plaintiff’s claims

because, under the boundary line established by the trial court, Defendants were not

cutting trees nor trespassing on Plaintiffs’ alleged side of the boundary. Many prior

precedents of the Supreme Court of North Carolina and this Court have recognized

the issue of “[w]hat are the boundaries is a matter of law to be determined by the

court from the description set out in the conveyance. Where those boundaries may be

located on the ground is a factual question to be resolved by the jury.” Batson v. Bell,

249 N.C. 718, 719, 107 S.E.2d 562, 563 (1959); see Chappell v. Donnelly, 113 N.C.

App. 626, 630, 439 S.E.2d 802, 805 (1994) (quoting Batson); Young v. Young, 76 N.C.

App. 93, 95, 331 S.E.2d 769, 770 (1985) (“the question of what are the termini or

boundaries presents a question of law for the court, while the question of where the

boundaries or termini are located on the ground is generally a question of fact for the

jury.” (citations omitted)).



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                                   Opinion of the Court



      The trial court’s Division Order showed it relied upon Toti’s opinion that the

line shown on the Nicholson Map and as advocated by Defendants is the correct

boundary line. The Division Order effectively mooted all their claims and denied and

deprived Plaintiffs’ of their right to a jury trial on the factual issue of the “on the

ground” location of the true boundary line. See Batson, 249 N.C. at 719, 107 S.E.2d

at 563.

      Even though the 16 March 2017 hearing was only noticed to be on Plaintiffs’

motion in limine, the trial court did not rule on the motion in limine but instead ruled

on the ultimate factual issue of the location of the boundary line, without a jury trial.

      The trial court’s orders effectively mooted and resolved all of Plaintiffs’ claims

and denied the demands in both Plaintiffs’ complaint and Defendants’ answer for a

“jury trial on all issues of fact to which they are so entitled.” Without immediate

appellate review, Ayscue’s substantial right to a jury trial on the critical preliminary

issue of the location of the boundary line on the ground is prejudiced. Batson, 249

N.C. at 719, 107 S.E.2d at 563; Mathias, 27 N.C. App. at 560, 219 S.E.2d at 647; J &

B Slurry, 88 N.C. App. at 5-6, 362 S.E.2d at 815. Ayscue’s appeal is properly before

this court. See Dep’t of Transportation v. Wolfe, 116 N.C. App. 655, 656, 449 S.E.2d

11, 12 (1994) (“since the trial court denied defendant’s request for a jury trial the

order affects a substantial right and is, therefore, immediately appealable.” (citations




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                                   Opinion of the Court



omitted)). In the exercise of our discretion and in the interests of judicial economy,

we review Ayscue’s appeal on the merits.

                                III. Standard of Review

      With regards to the trial court’s denial of Plaintiffs’ motion for reconsideration,

Plaintiffs’ motion does not cite to any rule of civil procedure as providing the basis for

the motion. This Court has previously treated motions for reconsideration as being

asserted under Rule of Civil Procedure 60(b). See, e.g., Henderson v. Wachovia Bank

of N.C., 145 N.C. App. 621, 626-28, 551 S.E.2d 464, 468-70 (analyzing defendant’s

“motion for reconsideration” of default judgment as motion for relief under Rule

60(b)), disc. review denied, 354 N.C. 572, 558 S.E.2d 869 (2001). “[T]he standard of

review of a trial court’s denial of a Rule 60(b) motion is abuse of discretion.” Davis v.

Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (citing Sink v. Easter, 288 N.C.

183, 198, 217 S.E.2d 532, 541 (1975)).

      We review de novo the issue of the trial court’s Division Order denying

Plaintiffs’ right to a jury trial. Piedmont Triad Reg’l Water Auth. v. Sumner Hills

Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (“It is well settled that de novo

review is ordinarily appropriate in cases where constitutional rights are implicated.”).

                                      IV. Analysis

                                         A. Notice




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                                   Opinion of the Court



      Ayscue argues the trial court improperly converted the noticed hearing on

Plaintiffs’ motion in limine into a bench trial and improperly decided the factual issue

of the location on the ground of the disputed boundary line. Ayscue contends the

motion for reconsideration should have been granted, in part, on this basis. We agree.

      North Carolina Rule of Civil Procedure 60(b) provides, in relevant part: “On

motion and upon such terms as are just, the court may relieve a party or his legal

representative from a final judgment, order, or proceeding for [m]istake,

inadvertence, surprise, or excusable neglect.” N.C. Gen. Stat. § 1A-1, Rule 60(b)(1)

(emphasis supplied).

      “The surprise contemplated by the statute is some condition or situation in

which a party to a cause is unexpectedly placed to his injury, without any fault or

negligence of his own, which ordinary prudence could not have guarded against.”

Endsley v. Supply Corp., 44 N.C. App. 308, 310, 261 S.E.2d 36, 38 (1979) (quoting

Townsend v. Coach Co., 231 N.C. 81, 85, 56 S.E.2d 39, 42 (1949)).

      On 18 January 2017, Plaintiffs filed a notice of hearing solely for their motion

in limine. The notice of hearing specifically indicates that the hearing was to be upon

the same motion in limine that the superior court had denied without prejudice on 7

November 2016.

      The transcript from the 16 March 2016 hearing on Plaintiffs’ motion in limine

shows Plaintiffs had no prior notice the trial court was effectively conducting a bench



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                                     Opinion of the Court



trial on the issue of the on the ground location of the boundary line. Plaintiffs’ counsel

clarified at the beginning of the hearing that he and Defendants’ counsel were there

on Plaintiffs’ motion in limine.

      Plaintiffs’ had no prior notice or basis to know the trial court was going to issue

a ruling on the location of the boundary line until the end of the hearing when the

trial court ruled the location of the boundary line was the line advocated by

Defendants.

      No party had moved or prompted the trial court to rule upon the factual issue

of the location of the true boundary line on the ground, nor did the trial court indicate

it intended to rule upon the location of the boundary line on the ground, until it did

so at the end of the hearing. The hearing on Plaintiffs’ motion was only calendared

to consider Plaintiffs’ motion in limine. This ruling by the trial court constitutes a

surprise which “ordinary prudence could not have guarded against.” Endsley, 44 N.C.

App. at 310, 261 S.E.2d at 38 (citation omitted). Plaintiffs’ motion for reconsideration

should have been allowed.

                                   B. Right to Jury Trial

      Ayscue also argues the trial court “erred by determining the location of the

boundary line without a jury trial and by denying Plaintiffs’ requests for a jury trial.”

We agree.




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                                   Opinion of the Court



       Article I, Section 25 of the North Carolina Constitution provides that, “in all

controversies at law respecting property, the ancient mode of trial by jury is one of

the best securities of the rights of the people, and shall remain sacred and inviolable.”

N.C. Const. art. I, § 25. North Carolina Rule of Civil Procedure 38 specifies the

method by which a party is required to assert the right to trial by jury in civil

litigation:

              (b) Any party may demand a trial by jury of any issue
              triable of right by a jury by serving upon the other parties
              a demand therefor in writing at any time after
              commencement of the action and not later than 10 days
              after the service of the last pleading directed to such issue.
              Such demand may be made in the pleading of the party or
              endorsed on the pleading.

              ...

              (d) . . . A demand for trial by jury as herein provided may
              not be withdrawn without the consent of the parties who
              have pleaded or otherwise appear in the action.

N.C. Gen. Stat. § 1A-1, Rule 38 (2017).

       According to Rule of Civil Procedure 39, “When trial by jury has been

demanded . . . [t]he trial of all issues so demanded shall be by jury, unless . . . [t]he

parties who have pleaded or otherwise appeared in the action or their attorneys of

record, by written stipulation filed with the court . . . consent to trial by the court

sitting without a jury[.]” N.C. Gen. Stat. § 1A-1, Rule 39. Here, it is undisputed




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                                     Opinion of the Court



Plaintiffs and Defendants both demanded a jury trial in their pleadings “on all issues

of fact to which they are so entitled” in accordance with Rule 38.

       Defendants argue the Consent Order, agreeing for the court to appoint Toti,

constituted a waiver by Plaintiffs of their right to a jury trial on the issue of the

location on the ground of the disputed boundary line. The Consent Order states, in

relevant part: “the parties agree that the [Toti] survey, when completed, may be used

by the Court in determining the issues presented in the instant action.”

       This language from the Consent Order does not amount to a waiver of

Plaintiffs’ right to jury trial.

              ‘It is a general rule, since the right of trial by jury is highly
              favored, that waivers of the right are always strictly
              construed and are not to be lightly inferred or extended by
              implication, whether with respect to a civil or criminal
              case. There can be no presumption of a waiver of trial by
              jury where such a trial is provided for by law. Thus, in the
              absence of an express agreement or consent, a waiver of the
              right to a jury trial will not be presumed or inferred.
              Indeed, every reasonable presumption should be made
              against its waiver.’

Mathias, 27 N.C. App. at 560, 219 S.E.2d at 647 (quoting In re Gilliland, 248 N.C.

517, 522, 103 S.E.2d 807, 811 (1958)).

       The Consent Order does not state that the trial court may use the Toti Survey

to resolve all factual issues, nor does the Consent Order refer to the parties’ rights to

jury trial, or any waiver thereof. See id. The Consent Order does not include a

stipulation that the boundary line determined by Toti would constitute the true


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boundary line for all purposes of Plaintiffs’ action and Defendants’ answer. See, e.g.,

Moore v. Richard West Farms, Inc., 113 N.C. App. 137, 142, 437 S.E.2d 529, 532

(1993) (affirming the trial court’s order establishing a boundary line when the parties

agreed to be bound by a survey prepared by an independent surveyor). We do not

extend by implication the language of the Consent Order to hold Plaintiffs had waived

their right to a jury trial. See Mathias, 27 N.C. App. at 560, 219 S.E.2d at 647.

       The issue of the “on the ground” location of a disputed boundary line is a

factual one for the jury. Batson, 249 N.C. at 719, 107 S.E.2d at 563. By issuing the

Division Order, the trial court improperly removed the factual determination of the

location of the boundary line on the ground from the jury. See id., N.C. Gen. Stat. §

1A-1, Rule 39. The ruling of the trial court deprived Plaintiffs of their properly

demanded and preserved right to trial by jury and constituted a surprise under North

Carolina Rule of Civil Procedure 60(b).

      Based upon the unfair surprise to Plaintiffs and the deprivation of the right to

a jury trial, the trial court abused its discretion by denying Plaintiffs’ Rule 60 motion

for reconsideration. See Davis, 360 N.C. at 523, 631 S.E.2d at 118. The trial court’s

denial of Plaintiffs’ Rule 60 motion is reversed, the Division Order is vacated, and the

matter is remanded for further proceedings.

                        C. Boundary Location is Issue of Fact




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                                   Opinion of the Court



      In issuing the Division Order, the trial court exceeded the scope of the Toti

Survey, and relied upon Toti’s opinion testimony that the location of the line

advocated by Defendants was the correct line. The Toti Survey shows both the

boundary line advocated by Plaintiffs and the boundary line as advocated by

Defendants.    Toti testified that the boundary line as advocated by Plaintiffs is

“mathematically correct,” while the boundary advocated by Defendants is

“graphically correct.”

      The Nicholson Map depicts a warehouse and landing that were also marked

and shown on the 1905 Parker Plat. The Parker Plat shows the common boundary

line of the respective tracts as lying between the warehouse and landing.            Toti

testified that when he conducted his survey he could not locate a warehouse and “[i]f

there was ever a landing there I can’t tell where it was.” Defendants’ surveyor,

Nicholson, had testified he had found the remnants of the warehouse and the landing

along the Roanoke River.

      According to the trial court’s findings of fact in the Division Order, the trial

court decreed the line advocated by Defendants was the correct boundary line based

upon Toti’s expert opinion that “the intention of the predecessors in title to divide the

tracts . . . into two tracts of nearly equal acreage in spite of the fact that the current

relative acreage of the tracts . . . are no longer equal.” The 1905 Parker Plat creating

both tracts expressly shows Plaintiffs’ tract, labelled “No. 2 Gorden Land,” as



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                                   AYSCUE V. GRIFFIN

                                    Opinion of the Court



consisting of 526 acres, and Defendants’ tract, labelled “No. 1 Gorden Land,” as

consisting of 525 acres.

      Based upon our holding to vacate the Division Order and remand to the trial

court, we tender precedents that “[a] court-appointed surveyor may not offer his

opinion as to the location of a disputed boundary line[.]” Jones v. Arehart, 125 N.C.

App. 89, 93, 479 S.E.2d 254, 256 (1997) (citing Carson v. Reid, 76 N.C. App. 321, 323,

332 S.E.2d 497, 499 (1985), aff’d, 316 N.C. 189, 340 S.E.2d 109 (1986)).

                                     V. Conclusion

      The trial court improperly deprived Plaintiffs of their right to a jury trial on

the factual issue of the physical location on the ground of the disputed boundary line.

See Batson, 249 N.C. at 719, 107 S.E.2d at 563. The trial court’s ruling on the location

of the boundary line constituted unfair surprise, and the court further erred by

denying Plaintiff’s Rule 60 motion for reconsideration. See Endsley, 44 N.C. App. at

310, 261 S.E.2d at 38. The trial court’s Division Order is vacated. In light of our

holding, it is unnecessary to address Ayscue’s remaining arguments and

preservations of error.

      This matter is remanded to the trial court for hearing upon Plaintiffs’ motion

in limine and for a jury trial on all matters so triable. It is so ordered.

      VACATED IN PART, REVERSED IN PART AND REMANDED.

      Judges CALABRIA and ZACHARY concur.



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