The opinion
WiNBORNE, J.
A reading of tbe averments in the answer of defendants in connection with the stipulation of parties entered upon the call of the case for trial in the Superior Court, reveals that defendants do not question plaintiffs’ title, and that the only matter in controversy is the location of the dividing line between the lands of plaintiffs and the lands of defendants, that is, the location of the State highway admittedly called for in deeds under which both parties claim. Indeed, the title of plaintiffs is really not in dispute. See Roberts v. Sawyer, 229 N.C. 279 , 49 S.E. 2d 468 , and cases cited.
Thus the original purpose of the proceeding to determine the true dividing line between the lands of plaintiffs and the lands of defendants is the sole issue. Therefore, as in processioning proceeding under Chapter 38 of the General Statutes of North Carolina, the cause should not be dismissed as in case of nonsuit. See Cornelison v. Hammond, 225 N.C. 535 , 35 S.E. 2d 633 , where the subject has been recently fully discussed and applied in opinion by Barnhill, J.
Hence plaintiffs’ exception to the ruling of the trial court in sustaining the motion of defendants for judgment as of nonsuit is well taken, and there must be another trial when the issue may be submitted to and answered by a jury.
Reversed.