An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-510
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


GAYLORD J. PERRY, SR., and wife,
DEBORAH W. PERRY,

      Plaintiff,

      v.                                      Dare County
                                              No. 07 CVS 902
ORVILLE L. TILLETT, MARSHALL
TILLETT and JEANNETTE TILLETT
AMBROSE,

      Defendant.


      Appeal by defendants from Order and Judgment entered 11

September 2012 by Judge J. Carlton Cole in Dare County Superior

Court.     Heard in the Court of Appeals 21 October 2013.


      Hornthal, Riley, Ellis & Maland, LLP, by M. H. Hood Ellis,
      for plaintiff-appellees.

      Aldridge, Seawell, Spence and Hudspeth, LLP, by Christopher
      L. Seawell and W. Mark Spence, for defendant-appellants.


      STEELMAN, Judge.


      Where a deed explicitly defined the boundary line between

two tracts of real estate with reference to the natural features
                                        -2-
of a ditch and a creek, the trial court erred in not partially

granting defendants’ motion for a directed verdict.



                   I. Factual and Procedural Background

    In 2001, Gaylord J. Perry, Sr. and wife Deborah W. Perry

(plaintiffs)    purchased    a    tract       of   land   in    Dare   County   from

Joseph L. Land and Vanecia C. Land, by deed recorded in Deed

Book 1353 at page 330 of the Dare County Registry (Land Tract).

In 2004, plaintiffs purchased a tract of land in Dare County

from William Morris Tillett, Kenny Tillett and Ann Tillett, by

deed recorded in Deed Book 1561 at page 393 of the Dare County

Registry    (Tillett    Tract).     Together,         these     tracts   ran    in    a

generally east-west direction from Shipyard Road to the Croatan

Sound.     The Estate of Orville L. Tillett, Marshall Tillett and

Jeanette Tillett Ambrose (defendants) own properties that abut

the southern boundary of plaintiffs’ property.

    There is no dispute that the common source of title for the

properties    of    plaintiffs    and     defendants      was    lands   owned       by

Samuel and Elizabeth Mann.           Defendants’ property was conveyed

out first by deed dated 9 January 1878 from Samuel Mann and wife

Elizabeth Mann to Willis Tillett, recorded in Book A at page 507
                                     -3-
of the Dare County Registry.              The northern boundary of that

tract was described as follows:

            ... thence N. 62 E. along a line of marked
            trees to a Juniper Post on the new main road
            to the S.E. corner, thence North Easterly to
            the head of the Fanny Payne ditch on the
            south side of said ditch running the S. side
            of said ditch to the Hammock Creek, thence
            along said creek and the S. side to Juniper
            Post & with the Hammock Creek ditch to the
            sound...

    The title to plaintiffs’ Land Tract comes from a deed dated

14 November 1887 from Samuel Mann and Elizabeth Mann to Samuel

Tillett   recorded   in   Book   C   at    page   15   of   the   Dare   County

Registry.    The title to plaintiffs’ Tillett Tract comes from the

Will of Samuel Mann, probated 8 October 1888 and recorded in

Will Book 1 at page 52 in the Office of the Clerk of Superior

Court of Dare County.

    In the course of surveying these tracts, it was revealed

that there was a substantial overlap of the descriptions for the

properties of plaintiffs and defendants.               On 14 November 2007,

plaintiffs filed a complaint seeking to quiet title to their

lands pursuant to N.C. Gen. Stat. § 41-10.                  Defendants filed

answer on 1 May 2008.       This matter was heard at the 20 August

2012 session of Superior Court before Judge Cole and a jury.
                             -4-
The following issues were submitted to, and answered by the

jury:

         ISSUE ONE:

         Do the plaintiffs have marketable record
         title to the tract of land described in the
         March 13, 2001 deed to plaintiffs from
         Joseph L. and Vanecia C. Land in Book 1353,
         Page 330 of the Dare County Public Registry
         (which I will hereafter simply refer to as
         the "Land Tract")?

             ANSWER: YES

         ISSUE TWO:

         Is the plaintiffs' title to tract of land
         described in the March 13, 2001 deed to
         plaintiffs from Joseph L. and Vanecia C.
         Land in Book 1353, Page 330 of the Dare
         County   Public  Registry   (which  I   will
         hereafter simply refer to as the "Land
         Tract") superior to the title claimed by the
         defendants?

             ANSWER: YES

         ISSUE THREE:

         Is the plaintiffs' title to tract of land
         described in the April 16, 2004 deed to
         plaintiffs from William Morris Tillett and
         Kenny Tillett in Book 1561, Page 393 of the
         Dare County Public Registry (which I will
         hereafter simply refer to as the "W.M.
         Tillett Heirs Tract") superior to the title
         claimed by the defendants?

             ANSWER: YES
                                    -5-
     Defendants moved for a directed verdict at the close of

plaintiffs’ evidence, and at the close of all of the evidence.

These motions were denied by the trial court.

     On 11 September 2012, the trial court entered judgment in

this matter, removing all of defendants’ “claim of title, estate

or interest” in plaintiffs’ lands.

     Defendants appeal.



                     II. Scope of Defendants’ Appeal

     On    appeal,   defendants   do    not    contest   the    trial   court’s

judgment as to plaintiffs’ “Land Tract” as reflected in the

jury’s answers to issues one and two.           Pursuant to Rule 28(b)(6)

of   the   North     Carolina   Rules     of   Appellate       Procedure,   any

objection to the judgment with regard to plaintiffs’ Land Tract

is deemed abandoned, and we hold that the judgment of the trial

court is without error.

               III. Denial of Defendants’ Motion for
               Directed Verdict as to “Tillett Tract”

                          A. Standard of Review

            In   determining  the  sufficiency   of  the
            evidence to withstand a motion for a
            directed verdict, all of the evidence which
            supports the non-movant’s claim must be
            taken as true and considered in the light
            most favorable to the non-movant, giving the
            non-movant the benefit of every reasonable
                                     -6-
              inference which may legitimately be drawn
              therefrom   and  resolving   contradictions,
              conflicts, and inconsistencies in the non-
              movant’s favor.

Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710

(1989).

    “On appeal the standard of review for a JNOV is the same as

that for a directed verdict, that is whether the evidence was

sufficient to go to the jury.” Tomika Invs., Inc. v. Macedonia

True Vine Pentecostal Holiness Church of God, Inc., 136 N.C.

App. 493, 498-99, 524 S.E.2d 591, 595 (2000).

                                 B. Analysis

    We hold that the instant case is controlled by the case of

Pardue v. Brinegar, 199 N.C. App. 210, 681 S.E.2d 435 (2009),

rev’d   for    reasons   in    dissent,   363   N.C.   799,   688   S.E.2d   19

(2010).   In Pardue, there was a boundary line dispute between

two property owners.          The dissent in the Court of Appeals held

that the following was the appropriate standard of review for

the trial court upon a motion for a directed verdict:

              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. App. 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
                                     -7-
           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.

Pardue at 217, 681 S.E.2d at 440.

    In    Pardue,   the   deeds     for    both    the     plaintiff    and   the

defendants called for a branch to be the boundary line between

the properties.     The dissent in the Court of Appeals held that

the branch controlled as       a    natural boundary between the two

properties.     Id. at 218, 681 S.E.2d at 440.               The jury verdict

and judgment of the trial court called for two straight lines

located   on   plaintiff’s   side    of    the    branch    as   the   boundary,

rather than the branch itself.             The dissent in the Court of

Appeals held that the trial court erred in not granting the

plaintiff’s motion for a directed verdict, and this position was

adopted by the North Carolina Supreme Court.

    Applying the holding of Pardue to the instant case, we are

compelled to reach the same result.              The controlling deed (Deed

Book A, page 507, Dare County Registry) calls for a boundary

between plaintiffs’ Tillett Tract and defendants’ property to

run from the head of the Fanny Payne ditch, thence along the

south side of the ditch to the Hammock Creek, thence along the
                                   -8-
south side of the creek to a juniper post, thence with Hammock

Creek to the Croatan Sound.

       Plaintiffs contend that there exists an ambiguity in the

description of the boundary line because it says “along said

creek” and not “with the creek.”         They further contend that this

constitutes an ambiguity as to the intent of the grantor of the

1878   deed   that   required   resolution   by   a   jury.   This   is   a

distinction without legal significance.           In Pardue, we cited to

the case of Tallahassee Power Co. v. Savage, 170 N.C. 625, 87

S.E. 629 (1916) for the proposition that “[t]he Court considers

it settled upon authority that up the river is the same as along

the river, unless there be something else besides course and

distance to control it.”         Pardue at 218, 681 S.E.2d at 440

(quoting Tallahassee Power at 630, 87 S.E. at 631).

       We hold that the language of the 1878 deed is clear and

unambiguous.    The southern line of plaintiffs’ Tillett Tract is

the south side of the Fanny Payne ditch and Hammock Creek.                It

was error for the trial court to deny defendants’ motion for a

directed verdict as to any lands claimed by plaintiffs lying to

the south of the ditch and the creek.

       We further note that there was testimony from plaintiffs’

surveyor, Wesley M. Meekins, Jr., as to why this discrepancy
                              -9-
between his survey and the deed description occurred.     Meekins

testified that the line followed “the south side of the ditch to

the creek and thence along the creek south side to the sound.”

He then acknowledged that the line he drew on the survey was a

straight line, and did not follow the deed description.   Meekins

went on to testify that:

         I was standing in the middle of the marsh
         looking at the land and making an assumption
         that the land was of very little value and
         at that time you couldn't do a thing in the
         world with it. And another, I was looking at
         the gentleman who was paying the bill and I
         knew that he was very low in his economic
         state and that if I went and did and took a
         shot on every bend and meander of that
         creek, we're talking about several more days
         in that mud, and I just made that the-- that
         decision that it at least adhered to the
         south side of the creek and started out on
         the south side of the ditch.

         . . .

         Looking back I told you that, looking back
         18 years in retrospect, I would do things
         differently today than I did then. But I
         can't effect [sic] what I did then except
         that I would have done different and that
         knowing that they didn't own anything north
         of that ditch and the creek and the land
         that we were talking about was needle brush
         marsh. I just made a human decision, I guess
         you might say.

    This testimony confirms that the line between plaintiffs’

Tillett Tract and defendants’ property ran along the south bank
                                          -10-
of the ditch and creek.            The line contained in the trial court’s

judgment    was    drawn    not    based    upon      the    1878      deed,     but   upon

economic expediency.

                                   IV. Conclusion

    We     hold    that    there    was    no    error      in   the     trial    court’s

judgment as to the boundary between plaintiffs’ Land Tract and

the property of defendants.            We hold that the trial court erred

in not granting defendants’ motion for a directed verdict as to

the portion of plaintiffs’ Tillett Tract lying south of the

south bank of the Fanny Payne ditch and the Hammock Creek.                              The

judgment   of     the   trial     court    as    to   Issue      Three    of     the   jury

verdict, plaintiffs’ Tillett Tract, is reversed, and this matter

is remanded to the trial court for entry of judgment removing

the cloud on the title to plaintiffs’ Tillett Tract only upon

the portion of their property lying to the north of the south

bank of the Fanny Payne ditch and Hammock Creek.

    NO ERROR IN PART; REVERSED AND REMANDED IN PART.

    Chief Judge MARTIN and Judge DILLON concur.

    Report per Rule 30(e).
