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McLennan v. Josey

Court of Appeals of North Carolina

May 20, 2014

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

Heard in the Court of Appeals March 19, 2014.

Halifax County. No. 10-CVS-1051. J.C. Cole, Judge.

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. Judges McCULLOUGH and DAVIS concur.

OPINION

Page 889

Appeal by defendants from order entered 10 June 2013 by Judge J. Carlton Cole in Halifax County Superior Court.

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, 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

Page 890

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 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 ...


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