139 N.C. 31 | N.C. | 1905
after stating the facts: Whether it was not relevant for defendant to show by the witness, Poison, the general topography of the country immediately surrounding the tract in dispute or the conformation of contiguous tracts, as bearing upon the character of the tract in question, and whether this evidence is of the same class as that excluded in Warren v. Makely, 85 N. C., 12; Bruner v. Threadgill, 88 N. C., 365, and Waters v. Roberts, 89 N. C., 145, where a comparison was attempted to be made between the tract in suit and other adjoining tracts for the purpose of determining the value of the former, we need not decide, as it is quite sufficient to hold, as we do, that if the evidence was irrelevant it was harmless. Indeed all the advantage of the answer to the question was with the plaintiffs. It is apparent from the form of the question, the defendant’s counsel was attempting to prove that the natural drainage of the land in dispute was over the Bishop tract, as plaintiffs’ own witness, J. H. Wahab, had previously testified. But defendant’s counsel got, as an answer to his question, not only what he did not want or expect, but something quite the reverse of it, and therefore the evidence made in favor, of the plaintiffs-Besides, it would seem relevant to the issue to show that the Bishop tract lay between this land and the creek, the natural outlet for the drainage of lands in the vicinity, and that on
The plaintiffs assign as error Ilis Honor’s instruction that the jury must be satisfied by the greater weight of the evidence that the land described in the complaint is “swamp land,” before they could find for the plaintiffs, thereby placing the “burden of proof” upon them. We think this was a proper instruction, under the pleadings and the facts of this case. Plaintiffs allege that they are the owners of this tract because it is swamp land. The Board of Education (as successor to the President and Directors of the Literary Fund, Const., Art. IX., sec. 10; Code, sec. 2506), could not establish any right or title to the land by virtue, of the statute, (Rev. Code, sec. 66; Const., Art. IX., sec. 10; Code, sec. 2506), investing it with the title to the “swamp lands” in the State as a part of the trust property to be held by it for the benefit of education, unless it could show that the lands claimed by it were of that description. Gould a plaintiff resting his right to the title or possession of land on a deed conveying, or a will devising, to him the swamp land in a certain larger tract described therein, recover any part of the land without showing that it comes within the particular description of the deed or will ? The Board does not acquire title, by virtue of the statute, to all of the lands of the State, but only to its “swamp lands.”
It is alleged in the complaint and virtually admitted in the answer that the plaintiff, the Alleghany Company, is in possession of the land claiming under a deed from the Board of Education, who asserted title to the land, under the statute, as swamp land. Assuming that this possession is presumed to be rightful and is sufficient, generally, to present a
The last objection of the plaintiffs is equally untenable. They requested the court to charge the jury that if they believed the evidence they should answer the issues “yes” or in favor of the plaintiffs. The evidence as to the character of the land was not all one way. When such an instruction is requested, the adverse party is entitled to have the evidence considered most strongly in his favor and all facts which it reasonably tends to prove for him must be considered as established, and any part of the evidence which tends to disprove the plaintiffs’ contention must be taken as true, as in case of a demurrer to evidence or motion to nonsuit. The testimony of Makely, Manning, Bishop and Spencer, especially that of the last named witness, tended to show that the land was not of that kind generally called and known as swamp land. The instruction therefore was not a proper one. It is unnecessary to decide whether the Act of 1891, ch. 302, applies to the defendant’s grant which was issued prior to its passage, as plaintiffs’ counsel conceded that the court
No Error.