dissenting. I cannot think that the Judge below made a correct ruling as to the burden of proof; certainly not to the extent to which it was imposed on defendant by the facts of the case as presented in the record.
It appears that, defendant having made an entry of a piece of land, plaintiff filed his bond and protest, and the cause was *679transferred to tbe civil issue docket. Ooming on for trial, an issue was -submitted as to whether the land was vacant, and the Judge held in limine that the burden of proof was on the defendant, the enterer, and defendant excepted. Defendant then made proof that his entry was formally regular, and both parties offered further testimony on the issue. The Court charged the jury that the burden of proof was on the defendant, and exception was again duly made. The jury, having deliberated for some time on the case, returned for a special instruction as to the burden of proof, and the Court again told the jury that such burden was on defendant, exception being made, and verdict was thereupon entered in favor of plaintiff.
The force and effect of this ruling was to impose on defendant not only the burden of showing that his entry was formally regular, but also of showing that the land in question had never before been withdrawn from entry, either by grant or appropriation, statutory or otherwise; and in this I think there was error which entitles the defendant to a new trial.
I concur in the view expressed by the Court that it is not a matter of first importance on which side of the docket the parties appear, nor do I think that the precise form of the issue is of great consequence; but the question is, by proper construction of the statute, addressed to this subject, Where is the burden of proof after defendant has made formal proof of his entry? Is it incumbent on him to establish further, under the same rule as to the burden of proof, that the land has never before been granted or otherwise appropriated, and is, therefore, .still subject to entry? Such a requirement is one that it would be very difficult, and in many instances impossible, to meet; and to impose it upon a litigant would very likely result in stopping all further entries of public *680lands wherever any one saw proper to file bis bond and enter protest
We know that there are great numbers of grants in this State, embracing large tracts of territory, the same grant often extending through different counties, many of them taken out in the remote past, and their location, even now, uncertain. It is, therefore, as stated, well-nigh impossible for the average citizen, and especially one who is á stranger to these titles, to establish whether a given piece of land is not already covered by one of these old grants. Though he might know of their existence, if the location of their boundaries were in doubt the expense of having an accurate survey, rendered necessary by this rule of proof, would very likely deter a man of reasonable business prudence from entering-on or pursuing a contest of that kind.
Says Black, in his Interpretation of Laws, p. 99 : “A statute is never to be understood as requiring an impossibility if such a result can be avoided by any fair and reasonable construction.” And in Lewis’ Southerland on Statutory Construction, 2 Ed., sec. 488, it is said: “In the consideration of the provisions of any statute they ought to receive such a reasonable construction, if the words and subject-matter will admit of it, as that the existing rights of the public, or of individuals, be not infringed. Consideration of what is reasonable, convenient, or causes hardship and injustice have a potent influence in many instances. It is always assumed' that the Legislature aims to promote convenience, to enact only what is reasonable and just. Therefore, when, any suggested construction necessarily involves a flagrant departure from this aim, it will not be adopted if any other is possible by which pernicious consequences can be avoided.” And Enlich on Interpretation, sec. 441, and Sedgwick are to like effect. It is an accepted principle of statutory construction and, in my opinion, should prevail in the case now before us.
*681Again, it is a recognized rule of proof that the burden should be placed on him who has the special opportunity of knowing the facts. In Lawson on Presumptive Evidence it is stated as a definite rule (No. 5) that the burden of proof is on the party to show a material fact of which he is best cognizant, and this is well established with us. Harper v. Express Co., at this term; Meredith v. Railroad, 137 N. C., 428; Mitchell v. Railroad, 124 N. C., 236. In this last case it is held to be “a principle of law that when a particular fact, necessary to be proved, rests peculiarly within the knowledge of one of the parties, upon him rests the burden of proof.” An application of this principle to the procedure now under discussion would, I think, properly place the burden of proof on the protestant. It was evidently never designed that an entry of land, regular in form, should be stayed by an officious intermeddler. The statute was designed for the benefit of one who was the owner or had some good reason to believe that a grant on the entry objected to would be of some injury to him; and in such case, if a protestant conceived, or had any valid reason to conceive, he would be injured, he best knows how and why this injury would arise. lie, better than any one, specially knows the basis of his own claim; and it is not unreasonable, but in accord with this established rule, just stated, that he should produce his proof and make exhibit of such claim as he may have — not, perhaps, to the extent of showing a perfect title, but at least of showing that the land in question has been withdrawn from entry by statute, or is covered by some former grant, or protected by adverse occupation from being again appropriated.
If the statute, in express terms, requires the interpretation applied in this case and upheld in the opinion of the Court, it should undoubtedly be obeyed. But no such words appear in the law. The Court, I think, places entirely too *682much stress on the concluding words of section 1109, that “On protest of bond being duly filed, the cause shall be transferred, and therefore notice shall issue to claimant, commanding him to appear and show cause why his entry shall not be declared inoperative and void.” It might well be that this should be considered done when proof is made that the entry has been regularly made; but, to my mind, this is nothing but a form for the notice, and was not intended to bear in any Avay on the burden of proof. It is similar to most other notices where a person is required to appear and answer some assault on his rights. The old form of summons in debt was to appear and show cause why judgment should not be taken for a sum certain. And, to set aside a judgment, the notice is to appear and show cause why a given judgment should not be set aside. But it would never occur to a court that the person notified, when he did appear, should be required to show, in the one case, that he did not owe the complainant; and in the other, that no assault could be successfully made on his judgment. It is simply a form for the notice, and in section 1113 — this is in a different portion of the statute from the entry — it is a section as to the survey, and the words in that section directing a survey, “If no protest is filed,” or, “if filed, and the right of claimant is sustained,” evidently refer to the'fact that there has been a contest determined, and has no reference to the burden of proof. Certainly, they would be considered very slight support for a construction that could only be upheld by the use of plain and explicit terms.
It is the policy of the State, and has been from the beginning, that the public and vacant lands should pass into the possession and ownership of its citizens. Pearson, J., in Ashley v. Sumner, 57 N. C., 123. Pursuant to this policy our statute has enacted that any citizen of this State, or any one who comes into the State with the bona fide intent to *683become a citizen or resident thereof, may make entries and obtain grants for vacant lands, and all vacant lands belonging to the State shall be the subject of entry, as therein provided. And while it has been found necessary to impose some restraints on the entries ad libitum, as at first allowed, it was never designed, I think, to establish a rule of proof that'in its practical application will put it in the power of any one who is willing to give a bond' of $200 to seriously impede and, in most cases, absolutely obstruct the carrying out of the State’s beneficent purpose.
I think the charge of the Court below objectionable because, in a statute which permits of construction, it adopts an interpretation: (1) Which is obstructive of public policy; (2) which imposes on one who desires to enter land requirements which it is well-nigh impossible to meet; and (3) which violates an established rule of proof, that the burden is on him who has the best opportunity of knowing the facts.
I therefore think there should be a new trial of the cause.
Walker, J., concurs in the dissenting opinion.