From the complaint and trial of this case, it is difficult for us to determine what the plaintiff complains of — whether it was for possession of land, or for trespass on land, or for stopping up (396) the plaintiff's mill-road. Nor are we able to determine the grounds of the plaintiff's complaint from the evidence introduced, or from the map filed, which shows as near nothing as it could well do, though made under order of the court. It seems not to have been made upon the calls in the deed, nor by the allotment of the homestead; nor does it show the contention of the parties, nor the locus in quo.
If the action is for defendant's stopping up the road, it cannot be maintained, as it is not claimed that it is a public road. Boyden v.Achenback, 79 N.C. 539, cited with approval in Collins v. Patterson,119 N.C. 602; S. v. Fisher, 117 N.C. 733. Unless the point at which it was closed is on the plaintiff's land, it would then be a trespass quareclausum fregit.
The complaint alleges a trespass upon the plaintiff's mill property by tearing down one house and by damaging other buildings. But these trespasses are denied by the defendant, and the plaintiff fails to offer any evidence to sustain either of these alleged trespasses.
The plaintiff asked that he be adjudged the owner of the mill and two acres of land, and that he be put in possession of the same. But the defendant in his answer admits that plaintiff is the owner of this mill and two acres of land, and alleges that plaintiff is in possession. And plaintiff offers no evidence to show that he is not in possession.
But singular as it may appear, after the defendant had admitted that plaintiff was the owner of the mill and two acres of land, he contends that it cannot be located; that the description in plaintiff's deed is too indefinite, and asks the court to nonsuit the plaintiff upon the (397) following grounds:
1. "That plaintiff had shown no title out of the State."
2. "That the description in the deed under which plaintiff claims is so uncertain as to be incapable of location."
3. "That if capable of location, the plaintiff's evidence is contradictory to the description in the deed and complaint, and is insufficient to locate the land." *Page 287
The court allowed the motion and the plaintiff excepted and appealed.
We do not think the judgment of nonsuit can be sustained upon the first cause assigned, as it appears (though not very distinctly) that plaintiff and defendant claimed under a common source (under A. Wiseman, paragraph 4 of the answer).
We do not think it can be sustained under the second assignment, as defendant in the first paragraph of his answer admits the plaintiff's ownership, as follows: "That he denies paragraph 1 of the complaint, but admits that plaintiff is the owner of two acres of land on Toe River, including an old, dilapidated and unused saw and grist mill." After this admission, it is too late to dispute its location.
We do not think it can be sustained under the third assignment, as defendant had admitted the location in his answer. And had this not been so, the sufficiency of the evidence was a question for the jury.
This case from start to finish seems to us to be wanting in clearness of conception, and not to have been tried upon any of the issues that mightpossibly have been presented upon the pleadings.
New trial.
(398)