Roberts v. . Preston

MerhimoN, C. J. after stating the facts: The plaintiffs claim as the heirs of Mills Roberts, deceased, and defendant justifies by virtue of a deed executed by him on the 18th *419 day of September, 1863, to W. H. Hughes and another, which specified and described the land thereby conveyed as “ beginning on the sound at a ditch in said Roberts-Benberry farm; thence up the ditch to the fence; thence along the fence outside to the edge of the swamp; thence up the swamp to said Roberts-Benberry line,” &c. The land is further described “ as a certain tract or parcel of land and the Long Befech fishery, on Albemarle sound,” &c. The evidence went to show that there is a ditch entering the sound at “A” on the diagram, and the plaintiffs contend that the beginning corner mentioned in the deed is there. The defendant contends that the beginning corner is at “ F,” on the diagram; that there was a ditch there in 1863, at the time, the deed mentioned was executed. The plaintiff insisted that there was no evidence to go to the jury to prove that fact, and the Court held otherwise, and we think properly. The testimony of the witnesses Winston, Leary and Hughes, all taken together, certainly tended to prove that a ditch probably wyas at the point on the sound designated as “F” on the diagram. And this is strengthened in that, as stated in the case settled, “there was evidence on the part of the defendant to the effect that there was a ditch from an old gate-post to a point near ‘F’; that it approached within eighty yards of that point, ‘ F/ -when a swamp, that may have obscured the line of the ditch as it formerly ran, intervened ; that there was also a sand-bar, caused by the ebb and flow of the tide, immediately upon the sound; that the ditch aforesaid seemed to have been cut for a drain, but was not now visible at ‘ F5; that nails in certain posts of a gate and trees, marking a line of water-fence, w'ere found wthen a survey was made, under order of the Court in this cause in 1887, running from the edge of the marsh to the sound, in line with the ditch. There wras a gully at ‘ F,’ through which the water flowred from the sound into the marsh, and again from the marsh to the sound.” Such evidence, taken in all *420 its reasonable bearings, certainly pointed, with no little force, to a ditch at “ F,” in 1863. It was evidence for the purpose of proving that a ditch was there then, to go to the jury, and it was their province to determine its weight and what inference they would draw from it as a whole, in respect to the material descriptive fact in question. There was evidence going to prove that Hettrick, under whom the defendant claims and justifies, had title to the land in question at and before the time of the alleged trespasses, and that he then had actual possession and control thereof, and that while he was so in possession, he allowed the defendant to cut timber, and do other things complained •of on the land. There was also evidence to the contrary. Unquestionably, the owner of land having the right of possession may peaceably enter upon it, while another person, who has no right, has previously taken, and has, possession thereof. When the lawful owner thus enters and takes possession, the possession extends to the whole tract unless a person is in the wrongful possession of some part, in which case, his wrongful possession is confined to the part of which he has actual possession. When the lawful owner thus takes possession, the law favors and helps him in the assertion of his right. Thus he has perfect title, and he may do whatever he may lawfully do with his own property. He cannot be treated as a trespasser in such case. He may put his agents and servants in possession of the land, or any part of it, under him, and may authorize other persons to cut timber, construct roads, and do other things on his land, and have the right to ingress, egress and regress. Nor can the person having such wrongful possession maintain trespass in such case against the lawful owner, or those in possession under him, or cutting timber, and doing other like things on the land by his permission or direction. This is so, because he goes into and has possession of right. Ring v. King, 4 Dev. & Bat, 164; Tredwell v. Reddick, 1 *421 Ired., 56; Everett v. Smith, Busb., 303; White v. Cooper, 8 Jones, 48; Gadsby v. Dyer, 91 N. C., 311; Logan v. Fitzgerald, 92 N. C., 644; Gaylord v. Respass, ibid., 553; Nixon v. Williams, 95 N. C., 103. The Court, therefore, properly declined to give the jury instructions as specially demanded by the plaintiffs, without modification. The conflicting evidence presented the case before the jury in two distinct aspects: one favorable to the plaintiffs, the other favorable to the defendant. As to that favorable to the former, the instructions given were quite as favorable as they were entitled to have. The Court properly went further, and gave instructions as to the aspect favorable to the defendant. It would have been error not to have done so. Nor do we, for reasons already stated, perceive any error in the instructions so given. As we have seen, there was evidence of title to the land in controversy in Hettrick; that he had possession of the land, and that he authorized the defendant to cut the timber, &c. If this was true, the plaintiffs could not recover. It was in the province of the jury, under instructions from the Court, to determine the issues of fact. What we have said disposes of all the, exceptions. Judgment affirmed.