54 S.E. 278 | N.C. | 1906
Plaintiffs sued for damages in the sum of $1,800, alleged to have been sustained by a trespass of the defendant in entering upon a tract of land containing 605 acres and cutting timber trees standing and growing thereon. The defendant denied the trespass and pleaded specially a grant issued to M. C. Houck hereafter mentioned and also the Cathcart grant and that the lands therein described had been conveyed by Dwight M. Lowry and wife to the Steel and Iron Company, and the title had passed by mesne conveyances to the defendant.
Plaintiffs introduced a grant to B. A. Berry for 605 acres, dated 31 October, 1888, and issued upon an entry to M. L. Pearcy, dated 13 December, 1886, which covered the land in dispute, and plaintiffs by mesne conveyances, which were put in evidence, connected themselves with said grant. They then offered evidence tending to show that they had been in adverse possession of the land from October, 1888, to November or December, 1897, but they had no possession after the latter date. In 1902 or 1903, the defendant entered upon the land and committed the trespass alleged in the complaint.
Defendant introduced a grant to M. C. Houck, dated 29 June, (388) 1888, and registered 8 June, 1889. It was issued on an entry of 7 May, 1887, and also covered the locus in quo and all of the land conveyed by the Berry grant. It then connected itself with this grant by showing mesne conveyances. The defendant next introduced a grant to William Cathcart for 59,000 acres dated 20 July, 1796, (389) which covered the locus in quo, and all the land described in the Berry and Houck grants which is north of the south boundary of the Cathcart grant, or what is known in the case as the "Cathcart line," and which has been designated by this Court for greater certainty as the line between the figures 35 and 36, shown on the accompanying map. There was no evidence that any one of the persons claiming under the Cathcart grant was under disability. It was admitted that those claiming under that grant had not been in the actual possession of the land covered by the Berry grant or any part of it, though they had been in actual and continuous possession of the other land described in the Cathcart grant and not covered by the Berry grant. There was evidence on the part of the defendant tending to show that the plaintiffs had not held possession adversely of the land described in the Berry grant for seven years. M. C. Houck, wife of John M. Houck, was under the disability of coverture from 1866 to 1900, when she was divorced and afterwards married her present husband, George W. Green. There was evidence *314 tending to show that the trees which were cut on the Berry tract had been counted, but it did not appear how many were cut on that part of the land south of the Cathcart line and how many north
[EDITORS' NOTE: THE MAP IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
of that line. The evidence on this question was substantially like that of Aaron Pearcy, which was as follows: "The timber was cut off by the W. M. Ritter Lumber Company's hands. It was heavily timbered land. On the south part was heavy white pine timber. Hampton and *315 William Berry helped me count the timber. We took it abreast and marked the stumps and counted them. I went on the outside because I knew the lines and counted only on the 605-acre tract; we counted none on the Scotchman tract. We counted 4,210 trees; I think there were about 9,000 stumps in all; something over. These were outside of the 26-acre tract. The timber was worth about $1 per tree. (390) It was easy to log, as there were tramroads; no one ever built a tramroad in our country except the defendant. The customary price was $1. The defendant bought at that; no one except defendant was running any mill in that section."
The plaintiffs at first contended, and proposed to show, that the Cathcart grant did not cover the Berry tract of 605 acres or any part of it, and the defendant undertook to prove that it did cover the said tract, and consumed a day in its effort to do so. The court suggested that it was best for the plaintiffs to admit that the "Berry 605-acre tract" was covered by the Cathcart grant. After some colloquy between the court and counsel, it was admitted by both parties that the Cathcart grant covered the 605 acres of land described in the Berry grant, the court at the time stating to counsel that they must act on their own judgment, as its views of the case might be erroneous. It appears by inference that the defendant requested the court to be allowed to withdraw the Cathcart grant, and the request was refused. Defendant excepted to the suggestion of the court to the plaintiff, and to all of the rulings of the court in this connection which related to the Cathcart grant. It was agreed that the judge should find the facts as to the title and as to all other matters outside of those embraced by the issues to be submitted to the jury, and that the court's conclusions of law thereon and its judgment should be entered, subject to exceptions by either party.
The defendant requested the court to charge the jury as follows:
"1. That there is no testimony from which the jury can determine the number or value of the trees cut north and of those cut south of the Cathcart line; the only testimony being that the three witnesses counted the stumps on, but none off, the 605-acre Berry tract, a portion of which lies north and a portion south of the Cathcart line.
"2. That the plaintiffs have not been shown, in any view of the testimony and admissions, to be the owners of any of the lands south of the Cathcart line." These instructions were refused, and defendant (391) excepted.
The court charged the jury:
"1. That although the suit was brought to recover only $1,800, they might assess damages to the full amount of $1,800 in response to the second issue, as to the land north of the Cathcart line, and the same *316 amount as to that south of said line, in response to the fourth issue, provided they found there was that much damage to the land south of the Cathcart line.
"2. That they could find from the evidence what amount of damage was done south and what amount north of this line, in response to the second and fourth issues."
The defendant excepted to those instructions and assigned as a special ground of exception to the second instruction, "that there was no evidence tending to show what amount of the entire damage was done by the cutting of timber south of the Cathcart line or what amount of timber was cut north of the Cathcart line, within the lines and boundaries of the Berry grant, and that one of the witnesses offered by the plaintiff testified that most of the white pine trees, which he said were the most valuable timber trees on the land, were cut on the southern part of the Berry grant."
The following are the issues, with the answers thereto:
1. Did the defendants cut timber on the land within the lines of the Berry grant north of the line of the Cathcart grant? Ans.: Yes.
2. If so, what damage was caused thereby? Ans.: $1,800.
3. Did the defendants cut timber on the land within the lines of the Berry grant south of the line of the Cathcart grant? Ans.: Yes.
4. If so, what damage was caused thereby? Ans.: $600.
5. Have plaintiffs and those under whom they claim been in the continuous, exclusive, adverse possession of the land within the lines of the Berry grant, claiming thereunder for seven years prior to 30 October, 1896? Ans.: Yes.
6. Have the plaintiffs and those under whom they claim been in the continuous, exclusive, adverse possession of the Berry grant, (392) claiming thereunder prior to November, 1897? Ans.: Yes.
The following judgment was rendered: "This cause coming on to be heard, and it being admitted that the Berry and Houck grants, which were introduced in evidence, covered the land in controversy, and that the Cathcart grant, also introduced in evidence, covered all of the said land north of the line on the plat marked "Cathcart line," and the jury having returned the verdict appearing in the record and the parties agreeing that the jury should not answer the issue as to title, and that the court should answer that issue, after the rendition of the verdict, and should find such additional facts bearing upon the question of title as are deemed material: The court finds as facts: (1) That the entry under which the plaintiff's claim can be located and all of its calls satisfied without embracing any of the land in controversy, and that there was no actual survey of said entry prior to the issuing of the grant *317 to M. C. Houck. (2) That at the time of the said entry under which the plaintiffs claim, and from that time continuously to 20 August, 1900, the said M. C. Houck was a married woman, and that plaintiffs have not been in possession of said land since 1897. The court thereupon finds that the plaintiffs are the owners of the land described in the Berry grant, which is north of the line of the Cathcart grant, and that they are not the owners of the land described in the Berry grant, which is south of said Cathcart line and which is embraced in the Houck grant. It is thereupon considered and adjudged that the plaintiffs are the owners in fee of the land described in the Berry grant, which is north of the Cathcart line, and that they are not the owners of any land south of said line which is covered by the Houck grant. It is further considered and adjudged that the plaintiffs recover of W. M. Ritter Lumber Company the sum of $1,800 and their costs, to be taxed by the clerk."
The defendants having excepted to the conclusion and judgment of the court, that the plaintiffs are the owners of the land described in the grant to Berry for 605 acres which lies north of the (393) Cathcart line, appealed to this Court.
There was some discussion before us as to the validity of the Pearcy entry upon which the grant was issued to M. C. Houck. We have not set out the contents of that entry, as we do not think it material to the decision of the case that we should pass upon that question. We assume for the sake of argument that but for the Cathcart grant the defendants would have the older and consequently the better title, the Houck grant having been issued before the Berry grant, and the Pearcy entry being, as we will also assume, too vague in its description of the land entered to constitute notice to the subsequent enterer and grantee, M. C. Houck, of the prior entry (McDiarmid v. McMillan,
With that question eliminated, the case stands thus: The Houck and Berry grants were both ineffectual to pass title to any land covered by the Cathcart grant, as the latter, being of older date, the estate had no title to that land at the time the junior grants were issued, and the lands were therefore not subject to entry and grant. The State (394) could not grant that which it did not itself have, and, therefore, where there are two or more conflicting titles derived from the State, the elder shall be preferred, upon the familiar maxim that he who is prior in time shall be prior in right, and shall be adjudged to have the better title. Hoover v. Thomas,
Have plaintiffs and those under whom they claim been in the continuous, exclusive, adverse possession of the land within the lines of the Berry grant claiming thereunder for seven years prior to 30 October, 1896? Yes.
Have plaintiffs and those under whom they claim been in the continuous, exclusive, adverse possession of the Berry grant, claiming thereunder prior to November, 1897? Yes.
The case states (record, p. 29) that there was evidence offered by the plaintiff tending to show that Elizabeth Barrier, the tenant of W. A. Berry, under whom the plaintiffs claim, had actual possession of the "land in controversy" for more than seven years, and that she had been ejected from "the said land" under a writ issued from the Federal court. We find other evidence in the case tending to show that there was an adverse possession of the same land by Elizabeth Barrier. It was agreed that the court might find the facts relating to the title and declare the law thereon, judgment to be entered accordingly. The court found the facts in regard to the adverse possession to be as stated in the fifth and sixth issues, and the answers thereto which were made by the court. There is no exception to the effect that the court improperly ruled as to what would constitute an adverse possession. None of the exceptions is sufficient to raise any such question, nor is it now intended to raise any such question, as we understand; but the contention simply is that the fact is not found whether the possession was above or below the Cathcart line. We think the verdict sufficiently ascertains that the possession extended to the land covered by the Berry grant, and this, in the absence of any restrictive words, means, as the verdict states, all of the "land within the lines and boundaries of the Berry grant," both (398) that above and below the Cathcart line. We conclude that the *321 fact of possession above the Cathcart line was sufficiently found to enable the court to proceed to judgment, unless there are other errors.
The defendants next contended that the evidence did not show, with sufficient clearness and certainty for the jury to act upon it, how many trees were cut north of the Cathcart line and how many south of it. We think the exception is well taken, and the court should have given the instruction, in regard to this phase of the case, which was requested by the defendants. The evidence tends to show that trees were cut on the Berry tract, but there is nothing to show on what particular part of the land they were cut, whether north or south of the Cathcart line. The jury cannot be allowed to guess as to where the cutting was done. The burden was upon the plaintiffs to show that the trespass was committed on the land belonging to them, and, as a part of the Berry tract did not belong to them, evidence tending to show that trees were cut on the Berry tract is not necessarily proof that they were cut north of the Cathcart line. They may all have been cut below that line. If they were cut on both sides of the line, it does not appear how many were cut on the north side or how many on the south. S. v. Collins,
The exceptions taken to the suggestion of the court, in regard to the effect of the introduction of the Cathcart grant and to its refusal to allow the grant to be withdrawn by the defendant, were not well taken, as those matters were peculiarly within the judge's discretion. The jury were out of the room when the suggestion was made, and the parties afterwards, in the presence of the jury, admitted that the Cathcart grant covered the land described in the Houck and (399) Berry grants. Nor do we see that it had the effect of changing the cause of action. The plaintiffs may have shifted their position a little in submission to the judge's intimation, but at least one of the causes of action, the trespass, was not changed. Both parties seem to have abandoned their original contentions, but the issues between them remained practically the same. No harm has come to the defendants from the suggestion of the judge and his subsequent rulings in connection with the withdrawal of the Cathcart grant. The refusal of the judge to permit the withdrawal of the Cathcart grant worked no prejudice to the defendant and does not raise a practical question, as in the new aspect of the case presented by the suggestion of his Honor and the changed attitude of the parties resulting therefrom, the plaintiff's counsel would undoubtedly have reintroduced the grant at the first opportunity, as that course would have been the only one left to him, if he *322 expected his client to succeed in the action. His right to reintroduce the grant cannot be questioned. This, perhaps, was the reason which influenced the court to rule as it did. The other exceptions may not be again presented, and require, therefore, no separate discussion at this time.
There must be another trial because of the error as to damages, but it will be restricted to the first and second issues, which will be amended so as to read as follows:
1. Did the defendants cut the timber on that part of the land, described in the Berry grant, which lies north of the southern boundary of the Cathcart grant, known in the case and now designated on the map as the line between figures 35 and 46?
2. If so, what damage has the plaintiffs sustained by reason of the said cutting of timber?
The other issues (except the third and fourth, which will be set aside) and the findings and rulings of the court, not relating to the first and second issues, will stand, and a new trial is awarded only as to the damages.
New trial.
Cited: Dew v. Pyke,
(400)