Benbow v. . Robbins

Rbabe, J. 3. As between individuals, twenty years possession of land or user of an easement raises a presumption of a grant. Rogers v. Mabe. 4 Dev. 180; Geringer v. Sommers, 2 Ired. 229. In tbe case before us it was found as a fact, that the defendant had used the easement for more than twenty years. But then comes in the statute of 12th February, 1867, and several other like statutes which provide “ that the time elapsed from 20th May, 1861, until 1st of January, 1870, shall not be counted so as to bar actions or suits, or to presume the satisfaction or abandonment of rights.” Neely v. Craig, Phil. R. 187; Morris v. Avery, Ibid, 238; Hinton v. Hinton, Ibid, 410; Platt v. W. N. C. R. R., 65 N. C. Rep. 74; Smith v. Rogers, Ibid, 181; Johnson v. Winslow, 63 N. C. Rep. 552. And then the defendant insists that that statute is a part of the stay law system and applies only to matters ex contractu. But that cannot be against the express words of the statute, that time shall not be counted to “ presume the abandonment of rights.” Why does defendant insist upon counting time I Evidently to presume the abandonment of rights by the plaintiff, whereas the statute says that time shall not be counted for that purpose. Howell v. Buie, 64 N. C. Rep. 446, is a case in point. 2. It is insisted by the defendant that the plain tift has mistaken his remedy. That he ought to have commenced by special proceedings under the act of 1868-69, chap. 158, secs. 10, &c., Bat. Rev., chap. 72. Mills in analogy to the old practice of a jury of view. See Rev. Code, chap. 71. Mills. And we think this objection would have been well taken but for the acts of 1870-’71, chap. 108, and 1872-73, commonly called the “ curative acts,” the latter of which is subsequent to the commencement of this action and cures the defect. Said acts provide that all actions, &c., which may have been irreg- *340 nlarly instituted in the Superior Court shall be, so far as- jurisdiction is concerned, the same as if regularly brought and shall be prosecuted in the Court where they are, to final judgment. Those acts are retrospective and they govern this- case. Bell v. King, 70 N. C. Rep. 330. There is error. This will be certified. Per Curiam. Judgment reversed.