The opinion
WiNBOKNE, J.
While there are two tracts of land described in plaintiffs’ complaint as the subject of this action, the location of the lines of the second tract only are in dispute here. And the answer to this question is determinative of this appeal: Did the court err in holding as a matter of law that the description of this second tract of land in the deed under which jdaintifl’s claim terminates at the edge of Cashie Swamp? We hold that the ruling is erroneous.
In the light of applicable principles of law declared in the case of Rowe v. Lumber Co., 133 N. C., 433 , 45 S. E., 830 , particularly in respect to the “Watkins 50-acre tract,” and again in same case reported in 138 N C., 465, 50 S. E., 848 , in which Brooks v. Britt, 15 N. C., 481 , is cited with approval, it would seem that whether the call “thence down the branch to Cashie Swamp” terminates at the edge of the swamp or extends on to the run of it, involves a matter of fact to be found by the jury upon the evidence offered.
However, testing the exceptions to the referee’s report filed by defendants, and their tender of issues by rules of procedure for preserving right to jury trial in a compulsory reference case, as enunciated in decisions of this Court, it appears that they meet the requirement sufficiently to *336 withstand successful attack. See Booker v. Highlands, 198 N. C., 282 , 151 S. E., 635 ; Brown v. Clement Co., 217 N. C., 47 , 6 S. E. (2d), 842 .
For error pointed out, the judgment of nonsuit entered below is
Reversed.