This is not sufficient to estop. Jenkins v. Jenkins, 225 N.C. 681, 36 S.E.2d 233; Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240; Stancil v. Wilder, 222 N.C. 706, 24 S.E.2d 527; Hardison v. Everett, 192 N.C. 371, 135 S.E. 288; Nash v. Shute, 182 N.C. 528, 109 S.E. 353. The mere fact that plaintiff and pleasant defendants joined to prevent a trespass is not such conduct as amounts to estoppel in pais.
Title or ownership is not directly put in issue in a processioning proceeding. Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80 S.E.2d 472; Brown v. Hodges, 230 N.C. 746, 55 S.E.2d 498; Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468; Geddie v. Williams, 189 N.C. 333, 127 S.E. 423; Nash v. Shute, 182 N.C. 528, 109 S.E. 353; Parker v. Parker, 176 N.C. 198, 97 S.E. 223; Cole v. Seawell, 152 N.C. 349, 67 S.E. 753. Where a special proceeding is begun to fix the location of the dividing line between two tracts of land, and defendant, by his answer, puts title to the disputed area in issue by alleging ownership, the proceeding in effect becomes an action to quiet title as provided by G.S. 41-10. Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79; Roberts v. Sawyer, supra; Clark v. Dill, 208 N.C. 421, 181 S.E. 281.
McCune v. Mfg. Co., 217 N.C. 351, 8 S.E.2d 219, and cases cited. When a fact has been directly tried and decided it cannot be contested again between the same parties or their privies in the same or any other court. Bennett v. Holmes, 18 N.C. 486; Armfield v. Moore, 44 N.C. 157; Dawson v. Wood, 177 N.C. 158, 98 S.E. 459; McKimmon v. Caulk, 170 N.C. 54, 86 S.E. 809; Nash v. Shute, 182 N.C. 528, 109 S.E. 353; Crawford v. Crawford, 214 N.C. 614, 200 S.E. 421; Current v. Webb. 220 N.C. 425, 17 S.E.2d 614; Harshaw v. Harshaw, 220 N.C. 145, 16 S.E.2d 666; Bryant v. Shields, 220 N.C. 628, 18 S.E.2d 157; Cleve v. Adams, 222 N.C. 211, 22 S.E.2d 567. "It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties . . ., regardless of the form the issue may take in the subsequent action . . ."
Negative easements are those where the owner of a servient estate is prohibited from doing something otherwise lawful upon his estate, because it will affect the dominant estate." Black's Law Dict., 409; 2 Washb.. Real Prop., 301; Tiffany on Real Property (2 ed.), 1199; Nash v. Shute, 182 N.C. 528. Easements are, again, either appendant, appurtenant or in gross.