#### F. A. WHITE and Wife, INA M. WHITE, v. MARTHA WOODARD and L. Z. WOODARD.

(Filed 9 April, 1947.)

1. Boundaries § 2b—

A call in a deed to a stake on a ditch and then with the ditch takes the line to the center of the ditch unless a contrary intent appears from the language of the instrument.

2. Same—

Where a call in a deed takes the boundary line to the center of a ditch, subsequent widening of the ditch would alter the center line in the direction in which the widening occurs, which change might be material, particularly in respect to urban property, and conflicting evidence as to subsequent changes in the width of the ditch and the consequent changes in the center line is properly submitted to the jury under proper instructions from the court.

S. Adverse Possession § 19—

In this processioning proceeding to locate the true boundary between the urban lands of the parties, plaintiffs’ evidence was to the effect that they had used the strip of land in dispute as a driveway for ingress and egress to their premises for all purposes for the statutory period, that the respective parties had made aprons on the contiguous driveways to their respective properties and that the center between these aprons was the boundary line for which plaintiffs contended. *3eld:*Plaintiffs’ evidence of adverse user for the purpose for which the land seemed best fitted was sufficient to have been submited to the jury, and nonsuit on the ground that such user was permissive is error. .

Appeal by plaintiffs from *Ca/rr, J.,*at October Term, 1946, of JOHNSTON.

This was a processioning proceeding for tbe purpose of establishing the line between the property of the plaintiffs on the west and of the *333property of tbe defendants on tbe east. Tbe plaintiffs claim title to tbe narrow strip of land involved under a deed from Dr. G. B. Woodard and wife, and by adverse possession. Tbe Clerk beard tbe matter and. from bis judgment tbe plaintiffs appealed, and tbis cause was beard before tbe judge presiding and a jury, and from an adverse verdict and judgment tbereon, tbe plaintiffs appealed to tbe Supreme Court, assigning errors.

*Paul D. Grady, Sr., and Lyon & Lyon for plaintiffs, appellants.*

*Hooks & Mitchiner for defendants,'appellees.*

Schenck, J.

There are two critical questions involved in tbis appeal: First, whether tbe court is correct in instructing tbe jury on tbe question of boundary that “a stake on tbe ditch” carried tbe dividing line to the center of the ditch under tbe facts of tbe case and, second, whether the court was correct in nonsuiting tbe plaintiffs on tbe question of adverse possession of tbe strip of land in controversy.

Tbe disputed line is between tbe western boundary of plaintiffs’ driveway and eastern boundary of defendants’ land along tbe location of tbe strip of land above referred to. Tbe location of that line depends upon the western boundary of the strip 7% feet wide in tbe deed referred to and located by reference to tbe calls in senior grants. Tbe determining call is for “a stake on a ditch” and with tbe ditch.

It is generally accepted that where a line is run to a stream or to “a stake on a stream” and thence with tbe stream, tbe intention is to extend tbe line to tbe middle of tbe stream as tbe true boundary, unless by tbe language employed tbe contrary appears. 8 Am. Jur., p. 764, Sec. 27. There is no reason why tbis should not apply to a ditch, although tbis is a rather indefinite term: For example, the ditch might be wide or narrow — in tbis case something like four feet wide' — with subsequent changes in width or location. Changes in its width would obviously throw tbe center line in tbe direction in which tbe widening occurred,- — ■ and tbis might make a marked difference in tbe boundary line between urban property where both by reason of its value and all tbe necessary uses to which it might be put, would become important.

In tbe case at bar there is evidence that tbe ditch bad been widened during tbe time witnesses professed to have known it as a dividing line between tbe Baptist Church property and tbe Woodard property. Depending upon its original width tbe center line may have been moved eastward or westward according to tbe direction of tbe change for a sufficient distance to practically cover tbe main portion of the disputed strip.

Tbe evidence as to changes made in tbe width of tbe ditch and tbe consequent location of tbe center line was conflicting, but the instructions *334to the jury on this point were adequate and the exceptions of the plaintiff cannot be sustained.

The plaintiffs introduced evidence tending to show that they and the persons under whom they claimed had used the strip of land in controversy for various periods — some of the witnesses went back 30 years, — ■ for all the purposes for which it seemed to be fitted, for exclusive ingress and egress to their premises for all purposes, including delivery of wood, farm products, groceries, and for other purposes. See testimony of Gurney Egerton, R., p. 25; L. C. Wilkinson, R., p. 25; L. F. Elmore, R., p. 26; Ruffin Atkinson, R., p. 27; S. V. Morris, R., p. 27; E. L. Etheridge, R., p. 28, and F. A. White, R., p. 28.

The plaintiff testified that he and the defendant had made aprons on the driveways so that White could-enter upon his driveway and Woodard might enter upon his driveway, and at the center between these aprons was the line for which he contends.

His Honor, upon defendant’s motion, nonsuited the plaintiff on his plea of adverse possession on the ground that the use was, as a matter of law, permissive. This must be held for error since the character of the acts upon the disputed strip was, under the facts of this case, for the jury. The plaintiffs are entitled to a new trial. It is so ordered.

New trial.