#### DAVID T. VANCE v. BENJAMIN PRITCHARD and RUTH PRITCHARD, His Wife, and SENIA PRITCHARD, Widow of JOHN PRITCHARD.

(Filed 9 October, 1940.)

1. Boundaries § 13—

The statute empowering the Superior Court to order a court survey of land in dispute in a pending action, C. S., 364, vests in the court a sound discretion within the limits defined.

3. Same — Denial of motion for court survey held not error upon the facts found.

In this action in ejectment, plaintiff claimed title to the mineral rights in a certain described tract of land and defendants claimed title to three small tracts. Upon plaintiff’s motion for a court survey of the tract claimed by him, the trial court found facts to the effect that reasonable grounds existed for belief that the three small tracts are within the boundaries of the larger tract claimed by plaintiff, and that plaintiff was unable to prove the location of all the boundary lines of the tract claimed *274by Mm by survey or witnesses, and that a court survey would affect the rights of large numbers of persons and landowners not parties to the action. *Seld:*The case, as constituted, does not involve the location of boundary lines between the land of plaintiff and defendants, and the court’s denial of the motion for a court survey is not held for error upon the facts found. The ruling of the court does not prevent plaintiff from having a survey made for the purpose of obtaining evidence in support of his cause of action.

Appeal by plaintiff from an order entered by *Bobbitt, J.,*at April Civil Term, 1940, of Avery.

Affirmed.

Following the decision of this Court in *Vance v. Pritchard,*213 N. C., 552, 197 S. E., 182, the plaintiff submitted to a voluntary nonsuit and subsequently instituted this action against Benjamin Pritchard and wife, and Senia Pritchard, widow of John Pritchard. Pleadings were filed wherein plaintiff alleged title to the mineral rights in a tract of 2,180 acres of land, and alleged that the defendants were wrongfully claiming and mining the minerals under a portion of said land. The defendant Benjamin Pritchard answered, denying plaintiff’s title and alleging title in himself to the land and minerals contained in three small tracts of 25.9, 26% and 16 acres, respectively.

Thereafter the plaintiff caused to be served on fifty-six persons, not parties to the suit, notice of motion for a court survey of the 2,180 acres, the mineral rights in which are claimed by him in his complaint in this action. A substantial number of these persons, entering special appearance for that purpose, opposed the granting of an order for a survey of this land. The court below, upon the affidavits presented, found the facts, and thereupon entered order denying plaintiff’s motion, as follows :

“1. This is an action in ejectment in which the plaintiff alleges ownership of the minerals and mineral rights, together with rights of ingress, egress, and regress, in respect of the tract of 2,180 acres described in the complaint, and further alleges that the defendants are wrongfully mining certain portions of said 2,180 acres and are trespassers.

“2. The defendants, after denying plaintiff’s alleged ownership in respect of said 2,180 acres, allege their ownership of three tracts of twenty-five and nine-tenths (25.9) acres, twenty-six and one-half (26%) acres, and sixteen and five-eighths (16%) acres, respectively, particularly described in their answer.

“3. In a former action by this plaintiff against these defendants, tried in the Superior Court of Avery County and heard in the Supreme Court of North Carolina, upon appeal, and decided as reported in *Vance v. Pritchard,*213 N. C., 552, subsequent to which decision a judgment of voluntary nonsuit was entered in the Superior Court of Avery County, surveys and maps were made of the boundaries of each of the three *275tracts particularly described in tbe defendants’ answer herein and these surveys and maps are now available for use by the plaintiff. (Findings of fact set forth in this paragraph three are based on admissions of counsel in .open court during the argument.)

“4. No boundary line as between lands of the plaintiff and lands of the defendants is drawn in dispute by the pleadings herein and this action is not for the purpose of establishing any boundary line as between lands of the plaintiff and lands of the defendants herein.

“5. The purpose of the survey for which the plaintiff applies for an order of survey in this cause is to locate all or certain of the lines and boundaries of the 2,180-acre tract and the immediate purpose, so far as this action is concerned, is the obtaining of such survey and the data to be obtained therefrom for use or possible use as evidence upon the trial of this action.

“6. There exists reasonable ground for the belief on the part of the plaintiff that the three tracts particularly described in the answer are within the boundaries of the 2,180-acre tract.

“7. The plaintiff up to now has been unable to locate a survey or surveys or a witness or witnesses by which or by whom the plaintiff can prove the location of all of the boundary lines of the 2,180-acre tract. The plaintiff has made diligent efforts to locate such survey or witness but without success up to now.

“8. The plaintiff must locate the lines and boundaries of the 2,180-acre tract in order to maintain this action and to do so must locate a survey or surveys already made or a witness or witnesses having knowledge of the lines and boundaries or have made now a survey of certain of the lines and boundaries of the 2,180-acre tract.

“9. The three tracts particularly described in the answer, if located within the 2,180-acre tract at all, constitute a very small portion of said boundary; a large number of persons, who are not parties to this action, own lands or interests in land within the 2,180-acre tract and just outside the 2,180-acre tract, and said persons have interests and rights with reference to the making of any survey of said 2,180-acre tract and will be affected by the entry of a surveyor upon lands necessary to be entered for the purpose of making such survey.

“10. A large number of persons have been notified of the plaintiff’s motion that an order of survey be entered in this cause in accordance with the notice appearing in the record. A substantial number of such persons, to wit: twenty-seven (27) under a special appearance, through their counsel of record, have protested the making of such order of survey in this cause.

“11. No person, so far as the record herein discloses, has obstructed or otherwise interfered with any effort on the part of the plaintiff to have made a private survey of the 2,180-acre tract.

*276And tbe court being of tbe opinion that it is not necessary or proper to make an order in tbis cause for a survey of all or certain of tbe boundary lines of tbe 2,180-acre tract, wbicb would or might prejudice or affect a large number of persons wbo are not parties hereto or involved in tbe controversy herein, and being further of tbe opinion that tbe plaintiff by procedure other than by order herein can establish tbe boundaries of said' 2,180-acre tract or of tbe lands owned by tbe plaintiff, and being further of tbe opinion that any order of survey made by tbe court herein would not be legally binding on persons not parties to tbis action but would in appearance and form pretend to clothe tbe surveyor named in such order with rights of ingress, egress and regress upon and through their lands and to such extent would or might prejudice or affect their rights.

“Accordingly, it is now ordered, adjudged, and decreed that the plaintiff’s motion for order of survey herein be, and it is hereby, denied.”

From the order denying his motion for survey, plaintiff appealed.

*J. V. Bowers, McBee <& McBee, and Harlcins, Van Winlcle & Walton for plaintiff, appellant.*

*Charles Hughes and Burlce ■& Burhe for defendants, appellees.*

DeviN, J.

The question presented by this appeal is whether, upon the facts found by the judge below, the plaintiff was entitled as a matter of law to the order of survey of plaintiff’s land as prayed.

Under the circumstances of this case, as they appear from the record, and the findings of the court, we are not inclined to hold for error the denial of plaintiff’s motion. The ruling complained of was made pursuant to the opinion of the court below, based upon the facts found, that it was not necessary or proper to order a court survey of the boundaries of plaintiff’s 2,180 acres of land.

It is provided in C. S., 364, that, “When in any suit pending in the Superior Court the boundaries of land are drawn in question, the court may, if deemed necessary, order a survey of the land in dispute, agreeable to the boundaries and lines expressed in each party’s title.” The statute further provides that for such surveys the court shall make proper allowance to the surveyor or surveyors to be taxed among the costs of the suit. The statute vests in the court a sound discretion within the limits defined.

It appears here that plaintiff desires a court survey of 2,180 acres of mountain land, affecting the rights of a large number of persons and landowners who are not parties to the action, for the purpose of providing evidence to establish his title and to show that defendant’s three small tracts of land aggregating 69 acres are embraced within the bound*277aries of plaintiff’s deed. Tbe case, as it is now constituted, does not appear to involve tbe location of boundary lines between tbe lands of tbe plaintiff and defendants.

Tbe ruling of tbe court below does not prevent plaintiff from having a survey made, and obtaining tbe evidence wbicb be is informed can be made available thereby.

Judgment affirmed.