Fuller v. . Elizabeth City

Furches, J.: It appears from the pleadings that the-defendant, exercising the right of eminent domain as an incorporated town, has taken and appropriated a portion of land within its corporate limits, opposite Cedar street and east of Road street, as one of the public streets of the-town. Plaintiff claims that said street is located on his land, by reason of which he has sustained damage to the amount of $400, which he has demanded of defendant,, and which defendant has refused to pay, or any part thereof. Defendant answers, and, among other things, denies that plaintiff is the owner of the land so taken and appropriated. This puts in issue the title to the land, and the burden is on the plaintiff to show that he is the owner before he can recover damage. Plaintiff, for the purpose of showing title, put in evidence a deed to him executed in 1870, based upon a deed of trust, made in 1858, and a. decree in equity and sale thereunder; and the appropriation complained of did not take place until 1893. Twenty-one years’ possession under color of title is sufficient to ripen the title, whether it is shown that the land has been granted by the State or not. And seven years’ possession under color will perfect the title, if it is shown that theStatehasgrantedthesame. Plaintiff showed color oftitle-for a greater length of time than was necessary to ripen into-a perfect title against the State and all persons not under- *30 disability, if it had been accompanied by adverse posses■sion. And this possession may be constituted in different ways — as by residing upon the land, by himself, or by his tenants, by fencing or by cultivation. But we are unable to see from the evidence that plaintiff has been in possession of this land at all, under any of the rules laid down by the law. The fact that he claimed it and offered it for sale, or that he paid taxes on it, is no possession. It must Be such possession and exercise of dominion as would subject him to an action of ejectment. The defendant asked the court to charge the jury that ■from the evidence in the case the plaintiff had failed to show title in himself. This the court refused to do. This was error, for which the defendant is entitled to a new trial. ,It may be that, with more preparation than seems to have been had on the other trial, the plaintiff may be able to complete his title. But, whether he will or not, there must be a new trial, and it is so ordered. New Trial.