Logan v. . Fitzgerald

Smith, C. J. (after stating the facts). Assuming the acts of ownership exercised upon and over the disputed territory outside of the enclosure and up to her claimed northern boundary, as run and marked by Blackstock, to have been so numerous and *649 frequent and for so long a period, as to constitute a possession, as defined in the opinion in Staton v. Mullis, ante, 623, it is manifest that such possession to be followed by the legal consequences attributed to it, must not have been interrupted during the prescribed time by the entry of the true owner, as of right, upon the premises, and his exercising similar authority. We have reference to land outside the enclosure, since title to that within seems from the long actual occupation by the defendant and her predecessors in interest, even without any written instrument, to be beyond dispute in the defendant. This does not aid the possession set up to that in controversy, covered by the conflicting claims. If the real owner does enter upon this outside space, the possession at once follows the title, and both title and possession are then in him; so that the continuity of the other possession being broken, when resumed as a new starting point, it must extend over seven years to produce the required result, as if there had been none before. The instruction to the jury was as favorable to the case of the defendant as she could reasonably require; for the entry necessary to interrupt her possession, according to the charge, must have been under a claim of superior title, which admits of an interpretation that more is required than the entry itself and the acts done upon the land, such as an assertion of a right thereto at the time of entering. If this be the meaning, the charge is open to complaint from the plaintiff, for an entry of an owner of land, as of right and not by permission, is itself an assertion of claim and recovery of possession of all that is not in the actual, as distinguished from the constructive, possession of the wrongful occupant. In the expressive language of the Court, which we have quoted in Gaylord v. Respass, ante, 553, in the opinion delivered in Daniel v. Woodruff, 10 M. & W., (Ex.) 631, “when a party having right of entry enters, it is not competent for him to repudiate any rights he may possess, and to say he has entered as a trespasser, or by some other than his real title. As soon as he has entered he is possessed, whether he will or no, by virtue *650 of every title which he had in him and could assert by entry.” These remarks, of course, have reference to an entry made in the exercise of a right, which, however misconceived and not within the declared or unexpressed intent, annexes the recovered possession to the title which is in the party. A possession thus acquired by the owner who may enter upon a mistaken and érroneous claim, nevertheless, is supplied by the legal estate, and the owner, in law, retains by virtue of his real, and not misapprehended right. Such re-entry puts an end to the constructive possession, and defeats its operation as a bar thereto. It is enough that the owner goes upon his own land as an assertion of his right as the owner, and it is not necessary to expel the occupant of the portion which is in his actual possession. Howell v. McCracken, 87 N. C., 399. We must understand there was evidence of interrupting entries made upon the land, to have the effect ascribed to them in the charge, in the absence of any exception based upon the absence of evidence, and especially since the instruction asked was that no such continuous acts of the plaintiff, showing a claim of ownership, had been proved “to break the continuity of the defendant’s constructive possession,” not that no successive entries by the plaintiff were in proof. It must be declared there is no error in the record and the judgment must be affirmed. No error. Affirmed.