                            NO. COA13-1271

                  NORTH CAROLINA COURT OF APPEALS

                         Filed: 20 May 2014


ALEX D. McLENNAN, JR., DOROTHY N.
McLENNAN, and RUFUS T. CARR, JR.,
     Plaintiffs,

    v.                               Halifax County
                                     No. 10-CVS-1051
C.K. JOSEY, JR., DEBORAH G. JOSEY,
JOSEY PROPERTIES, LLC, THOMAS D.
TEMPLE, IV, CRYSTAL TEMPLE, BETTY
JO TEMPLE, and JOSEPH LANIER
RIDDICK, III,
     Defendants.


    Appeal by defendants from order entered 10 June 2013 by

Judge J. Carlton Cole in Halifax County Superior Court.           Heard

in the Court of Appeals 19 March 2014.


    Rountree & Boyette L.L.P.,       by   Charles    S.   Rountree,   for
    plaintiffs-appellees.

    Etheridge, Hamlett & Muray, L.L.P., by Ernie K. Murray, for
    defendants-appellants.


    ELMORE, Judge.

    Defendants   appeal from order granting         plaintiffs’   motion

for summary judgment.   After careful consideration, we affirm.

                               I. Facts

    Alex McLennan, Jr., Dorothy McLennan, and Rufus Carr, Jr.,

(collectively plaintiffs) and C.K. Josey, Jr., Deborah G. Josey,
                                           -2-
Josey Properties, LLC., Thomas D. Temple, IV, Crystal Temple,

Betty Jo Temple, and Joseph Lanier Riddick, III, (collectively

defendants) own adjoining tracts of land with a common boundary

located in Halifax County.                In July 2010, defendants recorded a

map at Book 2009, Page 193, and a deed at Book 2321, Page 750,

in the Halifax County Registry that asserted ownership of an

area     allegedly      owned     by   plaintiffs.         On    27     August    2010,

plaintiffs filed a “COMPLAINT TO ESTABLISH BOUNDARY AND QUIET

TITLE” pursuant to N.C. Gen. Stat. § 41-10.                     Plaintiffs alleged

that defendants “claimed ownership of lands owned by Plaintiffs

and     have    created    a      cloud     on   title    to    Plaintiff’s       [sic]

property.”          Thereafter, plaintiffs filed a motion for summary

judgment that was heard before Judge J. Carlton Cole on 25 and

26 February 2013.         At the hearing, the evidence showed that both

parties obtained title to their tracts from a common source,

David Clark, on 10 November 1882.                 Following Clark’s death, his

lands    were       partitioned    and     divided   among      his   heirs      in   the

“Report        of    Commissioners        in     Partition”      (the     partition).

Plaintiffs’ source of title is “Lot 4,” allocated to Anna Clark,

and defendants’ source of title is “Lot 8,” allotted to Dora

Clark.         Plaintiffs’      southern       boundary   line    and     defendants’

northern boundary line are shared in common.                          The partition
                                   -3-
describes     the   common   boundary    line    as   “down    the   run   of

[Gaynor’s] Gut to the Canal[.]”           The dispute arises from the

parties’ disagreement as to the location on the ground of the

run of the gut to the canal.      Both parties agree that the shared

boundary runs southwest to a point where the flow of the gut

diverges.     However, plaintiffs argue that the gut forks left at

that divergent point and runs through a dam, a pond, and then

empties into the canal.        Defendants contend that the gut forks

right at the split and then empties into the canal.

                                 II. Analysis

a.) Prima Facie Case

    Defendants argue that the trial court erred in granting

plaintiffs’     motion   for    summary    judgment.          Specifically,

defendants aver that plaintiffs failed to meet their burden of

establishing the on-the-ground location of the claimed boundary

line: the run of the gut to the canal.          We disagree.

    “Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows that ‘there is no genuine issue as to any material fact

and that any party is entitled to a judgment as a matter of

law.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,

576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649
                                      -4-
S.E.2d   382,    385    (2007)).    We   must    consider   “the    pleadings,

affidavits and discovery materials available in the light most

favorable to the non-moving party[.]”            Pine Knoll Ass'n, Inc. v.

Cardon, 126 N.C. App. 155, 158, 484 S.E.2d 446, 448 (1997).

      Pursuant to N.C. Gen. Stat. § 41-10, an individual can

institute an action to remove a cloud on title “against another

who claims an estate or interest in real property adverse to him

for the purpose of determining such adverse claims[.]”                    N.C.

Gen. Stat. § 41-10 (2013).           The statute provides this express

authority in an attempt to “free the land of the cloud resting

upon it and make its title clear and indisputable, so that it

may enter the channels of commerce and trade unfettered and

without the handicap of suspicion[.]”            Chicago Title Ins. Co. v.

Wetherington, 127 N.C. App. 457, 461, 490 S.E.2d 593, 597 (1997)

(citation   and        quotation   omitted).       Should    the     plaintiff

establish “a prima facie case for removing a cloud on title, the

burden rests upon the defendant to establish that his title to

the   property    defeats    the   plaintiff’s    claim.”     Id.    (citation

omitted).       The plaintiff establishes a         prima facie      case for

removing a cloud on title upon satisfying two prongs: “(1) the

plaintiff must own the land in controversy, or have some estate

or interest in it; and (2) the defendant must assert some claim
                                        -5-
in the land adverse to plaintiff’s title, estate or interest.”

Hensley v. Samel, 163 N.C. App. 303, 307, 593 S.E.2d 411, 414

(2004) (citation omitted).            In order to establish ownership of

the disputed land under prong one, the plaintiff can utilize the

“common    source     of   title”     doctrine,     which    requires    him    “to

connect both [himself] and defendants with a common source of

title   and    then   show    in    [himself]   a   better    title     from   that

source.”      Chappell v. Donnelly, 113 N.C. App. 626, 629-30, 439

S.E.2d 802, 805 (1994) (citation omitted).                   Additionally, the

plaintiff must show that “the disputed tract lies within the

boundaries      of    their   property.”          Id.   (citations      omitted).

Accordingly, the burden is on the plaintiff to establish “the

on-the-ground location of the boundary lines which they claim.”

Id. (citation omitted).            He must “locate the land by fitting the

description in the deeds to the earth's surface.”                Id. (citation

and quotation omitted).        In locating such land:

              courts endeavor to place themselves in the
              position of the parties at the time of the
              conveyance, in order to ascertain what is
              intended to be conveyed; for, in describing
              the property, parties are presumed to refer
              to its condition at that time, and the
              meaning of their terms of expression can
              only be properly understood by a knowledge
              of their position, and that of the property
              conveyed.
                                          -6-
Cox   v.    McGowan,     116    N.C.     74,   76,    21     S.E.   108,   109    (1895)

(citation omitted).            It necessarily follows that “[r]esort may

not be had to a junior conveyance for the purpose of locating a

call in a senior deed.”             Bostic v. Blanton, 232 N.C. 441, 445,

61 S.E.2d 443, 446 (1950) (citations omitted).

       In   Poe    v.   Bryan,     the   plaintiff      testified       that     she   had

personal knowledge of the contended boundary line because she

lived on the tract of land during her youth and learned about

the boundary lines from her grandfather.                     12 N.C. App. 462, 466,

183 S.E. 2d 790, 792-93 (1971).                 A surveyor also testified that

“the courses on the court map were normal variations from the

courses on the deed and that the land described in the deed is

the same tract of land shown as plaintiffs’ contended tract.”

Id. at 466-67, 183 S.E.2d at 793.                    We held that “the testimony

of the feme plaintiff and the [trial] court appointed surveyor

constitutes sufficient evidence that the description of the . .

. deed fits the land and embraces the land in controversy.” Id.

at 467, 183 S.E.2d at 793.                 Conversely, our Supreme Court in

Day v. Godwin held that the plaintiff failed to meet his burden

to    locate      the   on-the-ground      location          of   the   disputed       land

because no survey of the disputed land was conducted nor did

plaintiff      have     personal    knowledge        about    the   location      of   the
                                          -7-
disputed tract.        258 N.C. 465, 470-71, 128 S.E.2d 814, 817-18

(1963).

       In the case at bar, plaintiff McClennan testified that he

worked on his grandfather’s farm and Lot 4 since 1958.                     During

that time, he “came to know the location of Gaynor’s Gut from

the Dam at Blue Pond to the Dam at Coon Pond, and from the Dam

at Coon Pond through Coon Pond to where Gaynor’s Gut enters

Clark’s Canal.”        In 1967, he managed the farm on a full-time

basis, and it required that he “know the location of Gaynor’s

Gut and the other boundaries of the property being managed.”

Plaintiff McClennan testified that the disputed boundary line

encompassing       plaintiffs’   land      “has   been    a   well    known,    well

marked and agreed upon line between our lands since the division

of   the   David    Clark   lands    in    the    1800’s.”     Additionally,       a

professional surveyor, Donald S. Hilhorst, surveyed Gaynor’s Gut

in 2010 using various recorded documents in the Halifax County

Register of Deeds Office.           He found the boundary line to comport

with   plaintiff     McClennan’s     testimony.          Hilhorst’s    survey    was

also consistent with “the legal description of Gaynor’s Gut”

found in a 1909 deed and “the recorded survey of the Mrs. Anna

C. Arnold [map].”
                                           -8-
      The 1909 deed divided defendants’ predecessors’ Lot 8 into

two parcels and gave one 805-acre parcel to the Wilts Veneer

Company     with    the   remaining    tract       to    be    held     by    defendants’

predecessors.        The deed explicitly indicated a shared boundary

line between Wilts Veneer Company and Anna Arnold’s (plaintiffs’

predecessor    in    title)    Lot    4,    which       necessarily          included   the

disputed land as part of Lot 4.                  It also contained a course and

distance description of the run of Gaynor’s Gut that places the

disputed tract within Lot 4.

      The    Anna    Arnold   map    was    created       in    1918     to    reflect    a

portion of Lot 4 that was given by Anna Arnold to Wilts Veneer

Company in a timber rights conveyance.                    It included a metes and

bounds description of Gaynor’s Gut from Lot 4’s northeast corner

down to its run to the Canal.               The metes and bounds description

reflected on the map shows the disputed land to have been owned

by Anna Arnold.

       Although Hilhorst used junior conveyances by referencing

the 1909 and 1918 documents in his survey, they did not enlarge

the   plaintiffs’         boundary    lines,        but        rather        provided    an

unambiguous specific description of Gaynor’s Gut, which comports

with the general description found in the partition.                           See Carney

v. Edwards, 256 N.C. 20, 24, 122 S.E.2d 786, 788-89 (1961) (“It
                                            -9-
is   .    .   .    well    settled   that    a    general      description     will    not

enlarge       a   specific     description        when   the    latter    is   in     fact

sufficient to identify the land which it purports to convey.

Only when the attempted specific description is ambiguous and

uncertain will the general prevail.” (citation omitted)).                               In

totality,         plaintiffs’    evidence        was   sufficient    to   meet      their

burden to show that the disputed area lies within the boundaries

of their land.

b.) Defendants’ Burden

         Since plaintiffs established a prima facie case of title to

the disputed land, defendants were required to establish that

their title was superior.

         On appeal, however, defendants present no evidence by way

of deeds in their chain of title to establish their superior

claim to the disputed land.             Moreover, defendants’ recorded map

in   2010         and     subsequent   deeds       using       the   map’s     boundary

description to convey the disputed land are junior to the 1909

and 1918 documents that describe the run of Gaynor’s Gut.                           Thus,

the descriptions found in the 1909 and 1918 documents control.

See Goodwin v. Greene, 237 N.C. 244, 250, 74 S.E.2d 630, 634

(1953) (“Where a junior deed calls for a corner or line in a

prior deed . . . it is not permissible to resort to a call in
                                         -10-
the junior deed for the purpose of establishing the call or line

in the prior deed.”).             The 1909 deed is included by reference in

each deed within defendants’ chain of title.                      Their chain of

title specifically excludes defendants and their predecessors

from the tract that was given to the Wilts Veneer Company in the

1909 deed.       As previously mentioned, the 1909 deed establishes

that the disputed land was never a part of defendants’ Lot 8.

      Although defendants offer parol evidence in the form of a

2010 elevation study, affidavits of individuals with personal

knowledge of the boundary line, and other extrinsic testimony to

show that the disputed land belongs to them, reliance on such

evidence is improper.             See Overton v. Boyce, 289 N.C. 291, 293-

94, 221 S.E.2d 347, 349 (1976) (“When the deed itself, including

its   references     .    .   .    describes    with    certainty      the   property

intended to be conveyed, parol evidence is admissible to fit the

description in the deed to the land” but is inadmissible to

“enlarge the scope of the description in the deed.” (citations

omitted)).        Thus,   defendants      failed       to   establish    that   their

title    to    the   disputed       property    was    superior   to    plaintiffs’

title.        Accordingly, the trial court properly granted summary

judgment to plaintiffs.

                                   III. Conclusion
                                -11-
    In   sum,   we   affirm   the   trial   court’s   order   granting

plaintiffs’ motion for summary judgment because no genuine issue

of material fact exists as to the true location of the boundary

line as contemplated by the partition.

    Affirmed.



    Judges McCULLOUGH and DAVIS concur.
