McLean v. . Smith

Avery, J. after staling the facts: It is settled that where the title deeds of two rival claimants to land lap upon each other, and neither is in the actual possession of any of the land covered by both deeds, the law adjudges the possession of the lappage to be in him who has the better title. If one be seated on the lappage and the other not, the possession of the whole interference is in the former. Green v. Harman, 4 Dev., 158; Williams v. Miller, 7 Ired., 186; Scott v. Elkins, 83 N. C., 424; Dobbin v. Stevens, 1 Dev. & Bat., 5; Smithy. Ingram, 7 Ired., 175; Kitchin v. Wilson, 80 N. C., 191. But if both have actual possession of the lappage, the possession of the true owner, by virtue'of his older title, extends to all not actually occupied by the other. When the plaintiff’s father, under whom he claims, enclosed, thirty-five or forty years before the trial (at the end of the parallelogram formed by the lapping lines of the two *177 one hundred-acre deeds), one acre of the three and three-eighths acres embraced in the disputed territory, the presumption was that he entered in the assertion of a claim of right under his deed, which covered his possession as it is now and w'as at the trial, and also (nothing more appearing than that he had enclosed and cultivated it in the ordinary course of husbandry) that his title to it had matured after seven years of such possession. Berryman v. Kelly, 13 Ired., 269; Williams v. Buchanan, 1 Ired., 535; Yates v. Yates,,76 N. C., 146; Lenoir v. South, 10 Ired., 237; McCormick v. Munroe, 3 Jones, 332; Malone R. P., p. 99; Kinney v. Viven, 32 Tex., 125; French v. Pierce, 8 Conn., 443; Staton v. Mullis, 92 N. C., 623. His adverse possession under a deed with definite boundaries extended to all land covered by it. Davis v. Higgins, 91 N. C., 382; Lenoir v. South, supra, If every man who is induced by an honest misunderstanding as to the sufficiency of a title that purports upon its face to convey land to enter into possession were denied the benefit of his open, notorious adverse occupancy until he should take the laboring oar and satisfy a jury that he did not make a mistake, the difficulty of proving the actual intent entertained by one under whom claim is made, in first entering on the land, would often destroy titles acquired by possession and universally recognized as good. Indeed, the doctrine of color of title is founded upon the idea of entering upon land in the reasonable belief that one is the true owner. Sedgwick & Wait, sec. 759. The defendant did not extend-her fence across the lappage at “ 0,” in the- other extreme corner, till 1879, when the previous possession of the plaintiff, if it was not equivocal, had already vested the title to the whole in the latter. Occasional entries on or before that time by the defendant for the purpose only of cutting trees or hauling lightwood or pine straw off the land, would not constitute a possession on her part and extend, constructively, as was *178 contended on the argument, to all of the interference except the actual possessio pedis of the plaintiff. Williams v. Wallace, 78 N. C., 354; Bartlett v. Simmons, 4 Jones, 295; Loftin v. Cobb, 1 Jones, 406; Everett v. Dockery, 7 Jones, 390; Morris v. Hayes, 2 Jones, 93. She must show that she continuously subjected the same portion of the disputed land to the only use of which it was susceptible, if she herself or her servants or agents occupied a Rouse upon it, or kept some portion of it enclosed, before she can limit the operation of plaintiff’s possession to his enclosure, Williams v. Wallace, supra; Moore v. Thompson, 69 N. C., 120. The extreme length to which' this Court has gone on that subject was in holding that making turpentine annually on land, or constructing a team-way into and bringing cypress and juniper from swamp-lands, unfit for other use, was a possession that would mature title under color. Bynum v. Carter, 4 Ired , 313; Tredwell v. Reddick, 1 Ired., 56. It devolved upon the defendant to show, by the testimony offered by the plaintiff, or that introduced on her own behalf, or for both, that the possession at “X” was, as she contended, equivocal in its character. If she offered competent testimony tending to rebut the presumption raised by the long continuous possession of plaintiff, under color of title, it was proper to submit it to the jury, for it is as essential to the efficacy of possession in maturing title that it should be open and unequivocal as that it should be continuous. Osborne v. Johnston, 65 N. C., 22. But it has been held proper to allow the jury to pass upon the character of the possession only in cases where the apparently adverse occupancy extended over a very insignificant area, and there was, moreover, evidence tending directly to prove that the entry was made by mistake on the part of the holder of the junior grant, or on the part of both him and the true owner,as where the former, or both, acting in concert, have made slight departures from the correct line, in locating and *179 building a fence without a compass, between corners or known points in the dividing line, and in cases where the holder of the superior title did not show a want of diligence, according to the admitted facts, in failing to bring an action against the intruder till the end of the statutory period. Wood on Lim. of Actions, § 263; King v. Wells, 94 N. C., 344; Green v. Harman, supra; Gilchrist v. McLaughlin, 7 Ired., 310; Buswell L. & A. P., § 250. The test by which we can determine whether there is sufficient evidence to submit to the jury as to the intent of the holder of the junior title, when he first entered upon the land in controversy, is involved in another question, Whether there is testimony tending to show that the true owner might then have failed to recover in an action brought against an intruder, because the circumstances indicated that it -was an entry by a mistake as to the location of a line upon a very minute territory belonging to the former? It is admitted that about one acre of the area in dispute was enclosed in the plaintiff’s field. It does not appear how far it extended over the lappage, but, as it seems on the map sent up to cover about one-foürth of the land in controversy, we are at liberty to assume that the fence may have extended seventy or one hundred yards over the line of defendant’s grant. We have no information that either plaintiff’s father, or defendant, or both, actually made any mistake, or had any understanding about the location of the fence forty years or more since. The quantity of land taken into the enclosure is not so insignificant that a vigilant man would have overlooked the trespass, or that a man who knew what he was doing would have committed it otherwise than for the purpose of asserting title to his boundary. Besides, the defendant has shown laches, indeed inexcusable want of diligence, in failing to ascertain that the plaintiff had enclosed inside of his field one of the four corners of her one-hundred-acre tract of land, it being in the shape of a parallelogram. If she had had her land surveyed at any *180 time within thirty years or more, she knew this fact. She was very negligent if she failed for that period, or for seven years even, to ascertain the location of her corner, or, if knowing where it was, she slept upon her rights till long after the end of the statutory period. If she had brought an action against the plaintiff’s father for trespass before he had held the possession seven years under his grant therefor, there would have been no evidence, as far as we can see, to go to the jury tending to show, under the plea of not guilty, that he made a mistake in cutting down the corner tree and clearing and enclosing an area of land around it, so as to include nearly the whole width and about one-fourth of the length of the lappage, and to extend (we are not informed how far, but we may assume) probably seventy or one hundred yards over the line for about one-fourth of its length. The testimony tends to show, if it has any bearing upon his intent, that plaintiff’s father entered with the purpose of asserting title under his grant, and the law presumes that such was his intent, if nothing appears to the contrary. The fact that the fence had been twice moved, without showing how far or why its location was changed, would not tend to show that he made a mistake in constructing it at first. In King v. Wells, 94 N. C., 344, the Court said: “Where there is a long line running over a wild mountainous ridge, such as that was, up to which the defendant obtained a possession, a small portion (in this instance less than one-fourth of an acre) might be taken and held for years without any one knowing whether there was a trespass or not.” Therefore, where the extent of a wrong doer’s possession is so limited as to afford a fair presumption that the party mistook his boundaries, or did not intend to set up a claim within the lines of the deed of the other party, it would be proper ground for saying that he had not the possession, or that it was not adverse.” *181 In Green v. Harman, supra, Chief Justice Ruffin says: “There ought to be some evidence of the owner’s knowledge of the claim besides the mere possession of so small a part. And if the land taken is very minute, so that an owner of reasonable diligence and ordinary vigilance might remain ignorant that it included his land, the possession should not be deemed adverse.” But in this case we know the fact that the defendant carelessty permitted the father of the plaintiff for more than twenty years, and the plaintiff for several years, to cultivate a considerable body of land, including the site of a muniment of title, without bringing an action for the trespass. There was less than a fourth of an acre taken by the long line of Wells’ fence in the case of King v. Wells, and his counsel contended that when he extended his fence so as to actually take in one-fourth of an acre, in 1861, it was no longer a minute portion. Seeming to concede the correctness of the position, if sustained by the facts, the Court said that the period from 1861 to the bringing of the action was not sufficient, omitting in the computation the time when the statute of limitations was suspended. After examining the authorities, we conclude that, where the extent of the trespass on the part of the junior grantee is so great that it should have attracted the attention of a vigilant owner, and there is no direct testimony tending to excuse the negligence of the senior grantee in failing to bring an action against the intruder, there is no evidence to go to the jury to rebut the presumption that the former acquired title to the extent of his boundaries at the end of the statutory period, which, in this case, is seven’ years. Lenoir v. South, supra. In such instances there is no probable ground for believing that the encroachment was inadvertent and without claim of right on the part of the former, nor permissive or overlooked without fault on the part of the latter. There was error in refusing the instruction asked, for which there must be a new trial. MeruimoN, C. J., dissented. Error. Footnotes [*] Head-notes by Aveky, J.