May v. Manufacturing & Trading Co.

Hoke, J., after stating tbe case: Tbe plaintiff, relying in great measure on showing title by seven years adverse occupation of land under color, was required to prove title out of tbe State, and endeavored to meet this requirement by showing thirty years adverse possession and also by evidence tending to prove that tbe locus in quo was embraced within a grant of tbe State to Erwin and Greenlee, bearing date in 1795,-and both ■phases of tbe inquiry were submitted to tbe jury on the issue as to plaintiff’s title. Adverse possession-for thirty-years is one of tbe recognized! methods of showing title out of tbe State, and it is not necessary 'to prove that such possession has been continuous one year with another, and, in cases coming within tbe former law, it *265 was not required to show any privity of estate between tbe different occupants, this last position having been changed by our statute on the subject and as to causes coming within its provisions. Phipps v. Pierce, 94 N. C., 518; Price v. Jackson, 91 N. C., 11-15; Revisal, sec. 380. The possession referred to, however, within the meaning of the principle, is actual possession, not necessarily continuous occupation of the property, but there must be some possession of- a hostile character sufficiently definite.and observable to. apprise the true,owner that his proprietary rights are being invaded, and of the extent of the adverse claim. Where one is in possession under color of title, having definite lines and boundaries, the calls and descriptions of the deed may be sufficient, but where there is no deed or color giving description of the property, there actual possession must be shown. It is not always required for this purpose that there should have been an inclosure or a clearing defining the full extent of the claim. As indicated by the statute, it may be sufficient to show possession “ascertained and identified under known and visible lines and boundaries.” Revisal, sec. 380. But when it is sought to extend the effect of an adverse occupation beyond an actual inclosure or clearing and up to marked lines and boundaries, there must be some evidence tending to connect the physical occupation with the boundaries claimed or some exclusive control and dominion over the unoccupied portion sufficiently definite and observable, as stated, to apprise the true owner of the extent of the adverse claim. Davis v. McArthur, 78 N. C., 357; Wallace v. Maxwell, 32 N. C., 110; s. c., 29 N. C., 135-137; Bynum v. Thompson, 25 N. C., 578; Ill. Sled Co. v. Belot, 109 Wis., 408; De Frieze v. Quint, 94 Cal., 653; Wade v. McDougle, 59 W. Va., 113; Porter v. Kennedy, 225 S. C., 354. In Bynum v. Thompson the correct principle is stated as follows: “It is admitted that, upon a long possession,' all necessary assurances may and ought to be presumed. But the question is, What is possession for that purpose? Plainly, it must be actual possession and enjoyment. It is true, indeed, that if one enters into land under a deed or will, the entry is into the *266 whole tract described in the conveyance, prima facie, and is so deemed in reality, unless some other person has possession of a part, either actually or by virtue of the title. But when one enters on land without any conveyance or other thing to show what he claims, how can the possession by any presumption or implication be extended beyond -his occupation de facto f To allow him to say that he claims to certain boundaries beyond his occupation, and by construction to hold his possession to be commensurate with the claim, would be to hold the ouster of the owner without giving him an action therefor. One cannot thus make in himself a possession contrary to the fact.”. The case of Smith v. Bryan, 44 N. C., 180-182, in no wise militates against this principle; on the contrary, serves the better to illustrate it; the evidence in that case tending to show clearing and exercise of control up to the known and visible lines and boundaries. On careful examination of the record, we fail to find evidence in the facts, as now stated, tending to connect the earlier and actual occupation or possession, relied upon by plaintiff to show title out of the State, with the lines and boundaries in the northeastern portion of the land claimed and necessary to cover the locus in quo. There is testimony of long possession at an old house place in the western part of the tract and a clearing of several acres around it, but there is nothing to connect such an occupation with the lines referred to. There seems to- be no satisfactory evidence of marks through that woodland of sufficient age to answer the requirement. The witness Denton, a surveyor, said he observed some marked lines out there, on a survey made by him something like eight or nine years before the trial, and they seemed to be fifteen or twenty years of age. Marks, therefore, which* of themselves could have had no connection with the old settlement in the western part of the plat, where the clearing was, and we find no evidence of any exercise of control or dominion of the unoccupied portion of the land in any way connected with the occupants of the old clearing or the title they professed to assert. On this phase of the inquiry, therefore, we'must hold there was reversible error in allowing.the jury to determine title out of the State by adverse *267 possession and by reason of an old settlement and clearing on tbe western portion of tbe land, wben there was not color .of title defining tbe limit of tbe claim and no evidence tending to extend tbe force and effect of sucb occupatión to tbe woodland on tbe eastern part of tbe land, and wbicb was necessary to include tbe locus in quo. Again, in tbe effort to establish title in herself by seven years adverse possession under color, the immediate deed to.plaintiff was insufficient for tbe purpose, being only six years old at tba time of action brought, and it was necessary, therefore, for plaintiff to show that one or both of tbe preceding deeds, under which she claimed, covered tbe land -in controversy. Tbe plaintiff contended and offered evidence tending to show that tbe northern boundary of these two preceding deeds was tbe line 3-4, and wbicb would include tbe land in dispute, while defendant contended that tbe true location was. tbe line d-e, as indicated by tbe course and distance of tbe deeds, and wbicb would' not include tbe land. All of these deeds purported to convey 50 acres. If located as plaintiff contended, they would include 60 acres, and if as defendant claimed, tbe quantity would be in accord with tbe deeds, and defendant referred to this excess of acreage as a cir•cumstance in support of its position, and asked bis Honor to so instruct tbe jury. Tbe court responded to tbe request, but in doing so, among other things, said: “I will state very frankly ■ that-1 do not think tbe acreage is of so great value to aid you in the determination of this "location, but you can consider it if it is of any aid according to your finding,” etc. His Honor may have been -correct in bis estimate, but if it were a relevant .circumstance at all, and it has been so held in cases of disputed, boundary (Baxter v. Wilson, 95 N. C., 137), tbe question of its weight in value, under our statute, was for tbe jury, and not for tbe court. For tbe'errors indicated, tbe defendant is entitled to a new trial of tbe cause, and it is so ordered. New trial.