HOKE and WALKER, JJ., dissenting. The defendant, Carpenter, entered a certain parcel of land, and (675) the plaintiff, Walker, filed his protest. Thereupon the matter came by proper process under the statute before the Superior Court for trial. His Honor submitted the following issue without objection: Is the land described in the protest and entry vacant and unappropriated? Answer: No. From a judgment for plaintiff, defendant appealed. The only question presented for determination is whether the court below erred in holding that the burden was upon the enterer, the nominal defendant in this case, to make out his prima facie case that the land in dispute, which he claims to have entered, was subject to entry; that is, vacant or unappropriated. It is immaterial that the clerk of the Superior Court has arrayed this protestant as a plaintiff and the claimant as defendant. In the view we take of the matter, it is more orderly in giving a title to proceedings of this character to put the claimant down as plaintiff and the protestant as defendant. However they may be arrayed on the docket, it is a fundamental rule of evidence that the burden of proof is on the party who substantially asserts the affirmative of the issue, whether he be nominally plaintiff or defendant. We think the learned counsel for the claimant is in error in describing the proceeding as "an action by the plaintiff, protestant, to vacate and entry laid by defendant." It is purely a statutory proceeding regulating the manner in which entries of vacant and unappropriated lands belonging to the State may be made and perfected and grants issued therefor, and it appears to us that the enterer or claimant is the actor therein, and when his right to make the entry is challenged, or denied by protest, he must make good in the Superior Court his claim of right to enter the land described in his entry. It is singular that this question has heretofore never been passed upon by this Court, and, so far as (676) we can find, the point has never been raised, except in the case ofJohnson v. Westcott, 139 N.C. 29, when it was deemed unnecessary to decide it. There seems to be a dearth of judicial precedents to guide us, for neither the diligence of counsel nor our own investigations have been able to discover any. So, in coming to a conclusion, we can only interpret *Page 468 the statute according to what we think is the manifest will of the General Assembly, and apply to the subject the general principles of law governing the onus probandi. In every mode of litigation an assertion of fact avails nothing without proof. Some party to it must commence by producing proof to sustain his allegation. The first rule laid down in the books on evidence is to the effect that the issue must be proved by the party who states an affirmative, not by the party who states a negative. Of course, such affirmative must be one in substance and not merely in form. An eminent writer on the law of evidence says: "This rule of convenience, which in the Roman law is thus expressed, Ei incumbit probatio, qui dicit, non quinegat, has been adopted in practice not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable; and, moreover, it is but reasonable and just that the party who relies upon the existence of a fact should be called upon to prove his own case." Taylor on Evidence, quoted in Bailey's Onus Probandi, p. 2, note.
The chapter regulating the entry of public lands describes the enterer as claimant of the land and prescribes with particularity what he shall set out in his written declaration. Among other requirements, the paperwriting must set out "the natural boundaries of any other person, if any, which divide it from other lands." When the entry is published, (677) any person who thinks his land is covered by it may file a protest, whereupon the claimant may be commanded to appear at the next term of the Superior Court and show cause why his entry shall not be declared inoperative and void. Upon the trial of the issue we think the burden is thus cast upon the claimant to make good his entry. How does he do it? First, by showing a written entry duly filed with the entry taker which fully complies with the requirements of the statute (Rev., sec. 1707); second, by showing that the lands he claims by virtue of his entry come within the description of the act as "vacant and unappropriated lands," at least so far as protestant is concerned, and are not embraced within the exceptions in the act (Rev., sec. 1693). The statute particularly declares that every entry made for any lands not authorized by the act to be entered shall be void. The statute further declares that where protest is filed the claimant's right to enter the land must be sustained before official survey is made and warrant issued for the same. It is, therefore, reasonable that the claimant should assume the burden and expense of proving at least that his entry does not trespass upon the protestant's domain, and that in his entry he has set out correctly the lines dividing the land entered from protestant's land. It seems to us not only unreasonable, but directly contrary to elementary principles, to require the protestant to take up the onus probandi and *Page 469 to show that the lands are not vacant lands and that the claimant has not complied with the terms of the statute. It appears to us to be more consistent with reason and principle to require the claimant affirmatively to sustain his right to make entry by showing an entry which in substantial form complies with the statute, and by offering evidence tending to prove that the lands were vacant and unappropriated lands, so far as protestant is concerned, and of the character that are open to entry, and that the lines of other lands which he is required to set out in his entry are correctly stated. This is no great hardship on the (678) claimant. He must necessarily be acquainted with the land before entry, and in order to write an entry in due form he must set out the dividing lines of those persons whose lands adjoin it. These requirements are evidently safeguards thrown around the appropriated lands of the neighbors in order that they may discover if their boundaries are trespassed upon, and, if so, enter a protest under section 1709 of the statute. This section provides that if any person shall claim title to or an interest in the land covered by the entry he may file his protest in writing. This protest stops the issuing of a grant until "the right of the claimant to make the entry is sustained." Section 1713. The claimant is the one who asserts his right to make the entry, and he should sustain it by proof, for it is but reasonable and just that the party who relies upon the existence of a fact, or asserts a right, should be required to support it by proof before his adversary is called upon to reply. We admit that the determination of this question is not without difficulty, but we think it would subject the bona fide owners of lands to great annoyance and expense if land speculators and timber hunters are permitted to enter all outlying tracts of woods and timbered lands and compel those who own them to enter their protests and prove their titles before the claimant is called upon to prove anything except a mere entry, which is his own ex parte production.
Affirmed.