Walls v. Grohman

EAGLES, Judge. We note as a preliminary matter that defendants’ failure to except to the findings of the referee that plaintiffs were vested with superior record title to the disputed lands makes the referee’s findings conclusive on appeal. In Re Hayes, 261 N.C. 616, 135 S.E. 2d 645 (1964). Therefore, the sole question presented for review is whether defendants’ possession of the disputed lands amounts to adverse possession under the well-settled principles of law in this state. Under G.S. 1-40, adverse possession against an individual without color of title must run for 20 years before title ripens in the adverse possessor and is extinguished in the former owner. Adverse possession is defined as “the actual, open, notorious, exclusive, continuous and hostile occupation and possession of land of another” for the statutory period. Webster, Real Estate Law in North Carolina, Section 286 (Hetrick rev. 1981). There was evidence at the referee’s hearing that tended to show isolated acts of possession on the part of defendants as to portions of the disputed area. Mrs. Grohman testified that when the family division of the property of her mother and father was made, that it was her understanding that her land went to an iron stake and that it was her understanding that the property conveyed to her by her mother included the lands and premises which are the subject of this action. The property actually conveyed to Mrs. Grohman was by a deed that failed to convey the disputed lands. This evidence, contained in the referee’s report and in the transcript of the referee’s hearing, was sufficient to support the district court’s finding that This testimony was apparently the basis of a conclusion by the Referee that the property claimed by Mrs. Grohman was within the boundaries of lands believed and claimed to be [448] theirs as a matter of right and title from and after the deed to Mrs. Grohman from her mother. In Sipe v. Blankenship, 37 N.C. App. 499, 246 S.E. 2d 527 (1978), cert. denied, 296 N.C. 411, 251 S.E. 2d 470 (1979), this court held It is the rule in this State that a grantee’s occupation of land beyond the boundary called for in his deed under the mistaken belief that it was covered by the description in his deed will not be considered to be adverse. Thus, where a grantee goes into possession of a tract of land conveyed and also takes possession of a contiguous tract under mistaken belief that the contiguous tract is also included within the description of his deed, no act on his part, however exclusive, open and notorious, will constitute adverse possession of the contiguous tract prior to the time he discovers that the disputed area was not covered by the description in this deed. Id. at 505, 246 S.E. 2d at 532. It is interesting to note that in Sipe v. Blankenship, supra, the following testimony appears I am not claiming any of Mr. Sipes’ land. Just ours. I’m claiming where the old line was set up. What’s always been the old line. My mother pointed out to me where this old line was. 37 N.C. App. at 506, 246 S.E. 2d at 532. Here, there was similar testimony from Mrs. Grohman: [O]ur dad took us down and showed us the iron stake at each point . . . and said that was the property I was getting The iron stake that he showed me on what I call the right side, that’s the iron stake in question here today. The iron stake lines up with the hedgerow . . . [my husband] and I possessed that property. It was our property. Mr. H. G. Grohman testified at the referee’s hearing, “[n]ow with regard to this 50 feet in question, [Mrs. Grohman] and I recognized that as our 50 feet throughout the years.” [449] In view of this testimony from defendants, there was sufficient evidence from which the district court could find and conclude that defendants exercised possession over the disputed area solely because they believed that it was in fact their land and that it was included in the description contained in their deed. Such possession may not be considered adverse. Sipe v. Blankenship, supra; Price v. Whisnant, 236 N.C. 381, 72 S.E. 2d 851 (1952); Garris v. Butler, 15 N.C. App. 268, 189 S.E. 2d 809 (1972). But see, Chambers v. Chambers, 235 N.C. 749, 71 S.E. 2d 57, reh. den. 236 N.C. 766, 72 S.E. 2d 8 (1952); Battle v. Battle, 235 N.C. 499, 70 S.E. 2d 492 (1952). Defendants argue on appeal that the deed conveying the property to Mrs. Grohman said that the distance along the road right of way was 242 feet to a stake and that since defendant is presumed to know what was in the deed, the possession of the 50 feet not embraced in the deed can only be adverse. We disagree. The evidence clearly shows that Mr. and Mrs. Grohman both thought the land was theirs and there was no intent to hold the 50 feet in question adversely to anyone. “It is the occupation with the intent to claim against the true owner, which renders the entry and possession adverse.” Gibson v. Dudley, 233 N.C. 255, 63 S.E. 2d 630 (1951). For the foregoing reasons, the order of the district court quieting title to the disputed land is Affirmed. Chief Judge HEDRICK and Judge Whichard concur.