26 N.C. 310 | N.C. | 1844
Trespass quare clausum fregit, commenced in May, 1841. The locusin quo is a slip of land, about half a mile long and from 100 to 150 yards wide, containing about 26 acres. The plaintiff showed the title to be in Susan Hines on 1 September, 1840, as a part of a large tract, containing about 200 acres, which she sold and conveyed to the plaintiff by deed, bearing date 1 September, 1840, and containing a general warranty, "except as to a small part claimed by Carter," the defendant. Miss Hines was an infant until a short time before her sale to the plaintiff, and Richard Hines was her father and guardian and kept a tenant on the land from 1828 to the date of the deed, but the tenant occupied (311) the upper part of the tract and had no actual possession of any part of the 26 acres. The pleas were "not guilty" and "liberumtenementum."
On the trial the defendant showed a patent to one Ellis, issued in 1822, for 57 1/4 acres of land and including the slip of 26 acres, and showed, further, that in 1834 Ellis placed a tenant on his tract, who lived on a part of the tract without the limits of the 26 acres in dispute, but who in that year boxed all the pine trees suitable for making turpentine, as well within the disputed part as on the residue of the tract, and continued to cultivate the trees in the usual way of making turpentine regularly every year up to 1839, inclusive, and that in January, 1840, Ellis sold and conveyed to the defendant, who entered upon the lands and cultivated the same trees during 1840 and 1841. It appeared in evidence that the process of making turpentine is, after the boxes are cut, to begin operations about 1 April and chip the trees so as to allow the gum to exude and run into the boxes below, and every 8 or 10 days, after chipping particular trees, to dip the turpentine collected in the boxes and chip the trees afresh. This continues until about 1 October, when the gum ceases to flow, and that which has become hard on the trees during the *235 summer is scraped down, which terminates the cultivation for that year. The trees then stand until the next spring, when the process is renewed, and so from year to year, until the trees become exhausted, which may be, according to the industry with which the business of chipping is plied, from 5 or 6 to 10 years. No fencing or inclosure around the land is required.
The slip of 26 acres consists of about 10 acres of old field, grown up in young pines, and the residue of swamp, excepting a few spots on which the original growth of pines fit for turpentine stood, amounting to some 30 or 40, or more. The locus in quo is situate on the edge of the swamp, and no road passes within sight of it.
In August, 1840, Mr. Hines, at the request of his daughter, being in treaty for the sale of the land to the plaintiff, went on the disputed land and found the defendant there, tending the trees and (312) making turpentine, and told him he must quit trespassing on the land or he would be sued. To that the defendant made no answer, but continued his operations, making two barrels of turpentine that year on this piece of land, and also renewing the business of carrying it on the next year, 1841. The deed from Miss Hines to the plaintiff was not executed on the land.
The defendant's counsel insisted that the plaintiff could not recover, because the defendant was in the actual adverse possession at the time the deed was executed to the plaintiff, and that the plaintiff never had such a possession as enabled him to maintain trespass. The plaintiff's counsel insisted that, there being no house nor enclosure of the defendant, the fact of his attending the turpentine trees did not amount to a continuing possession, but constituted so many distinct trespasses every time he went on the land, and as Miss Hines had a tenant on a part of the tract, and had title, this gave her, in law, the possession of the whole; and supposing that when the defendant went on her land this disturbed her possession for the time, still the instant he went off, her constructive possession took effect again, and there was no proof of an actual possession by the defendant at the time the deed was delivered. Secondly, that tending some 30 or 40 turpentine trees in an out-of-the-way place was not such an open and notorious possession as the law required to divest the possession of the real owner. Thirdly, that the entry of Mr. Hines, as his daughter's agent, in August, 1840, revested the possession, so that she could then bring trespass or make a deed to the plaintiff and enable him to bring the action.
The court instructed the jury that, up to the time when Mr. Hines came on the disputed land, the possession of it was in the defendant by reason of the regular tending the turpentine tress by himself and those under whom he claimed; and that if the jury believed that (313) *236 the defendant did not abandon his possession after he was forbidden to trespass further, but remained on the land after Hines left it, and continued to cultivate the trees that year, and resumed the cultivation the next, the possession was legally in the defendant and held adversely by him at the time Miss Hines conveyed to the plaintiff, although the defendant might not in fact have had his foot on the disputed land at the instant the deed was executed; and, therefore, that the locus in quo did not pass by the deed to the plaintiffs, and he had not the title nor the possession which would enable him to maintain this action.
The jury found the defendant not guilty, and from the judgment rendered, pursuant to this verdict, the plaintiff appealed.
As the paper titles of Miss Hines and the defendant both covered the locus in quo, and that of the former was the better title, the possession of the disputed land was constructively in her, unless the acts of Ellis and the defendant amounted to actual possession of the locusin quo, in which case Miss Hines must be deemed to have been ousted of her possession of that part of the land covered by both conveyances.Carson v. Burnett,
But it was argued that, although it may be true that the making of turpentine constitutes possession when carried on to a considerable extent and with certainty, visible to the owner, yet that, here, the trees were too few and the place too much out of the way to authorize a fair inference that the owner knew thereof, and, therefore, that her possession cannot be held to have been terminated. We admit there may be cases in which the possession may be of so minute a part of the disputed land as not to amount to an ouster of the owner, being regarded, rather, as an inadvertent encroachment without a claim of right, or as permissive and not adverse. But in such cases the conclusion does not arise from the supposition that the owner was actually ignorant of the fact of the possession or of its extent, but, as was mentioned in Green v. Harman, that the other party did not intend to usurp a possession (315) beyond the boundaries to which he had a good title. In holding that making turpentine constitutes possession, we necessarily hold that it is an occupation which by its nature is sufficiently notorious to afford notice to an owner of ordinary attention to his affairs. If, therefore, the extent of the wrong-doer's possession be so limited — for example, here, the number of trees so few — as to afford a fair presumption that the party mistook his boundaries or did not intend to set up a claim within the deed of the other party, it would be a proper ground for saying that he had not the possession or that it was not adverse. But in the case before us there can be no doubt that the defendant did intend to take possession and to assert a title to the extent of his own deed. Those who went before him actually tended the trees 6 years before his purchase. It does not appear that they or he knew that Miss Hines had a title to the land, and as soon as he purchased he commenced that use of the land from which he would derive the most profit. His purpose, therefore, was to enter into and claim the whole, as must be assumed upon the same principle on which the courts hold that a possession of a part of the land disputed is the possession of the whole of it. We do not say, if a person designs and by contrivance is able to conceal from the owner this occupation of a minute parcel for the purpose of defeating the better title by a clandestine occupation, that it might not make a case of fraud which should *238 not be allowed to succeed. But if it be so, the intent must be found by the jury, and no such point was made to the jury upon this trial. This case is, that every tree on the land that was fit for the purpose was boxed and tended for a crop of turpentine 6 or 7 years by those who had deeds which covered the land and who claimed it under those deeds, and had no notice of an adverse claim until nearly the seventh year of their possession. They went as far as they could in taking possession, unless by living on the land or enclosing it for a grain crop.
(316) It was further contended that the entry of Mr. Hines revested the possession of his daughter, so as to enable her to bring trespass or to convey to the plaintiff, so that he could sue. It is not doubted that the entry of the owner upon a trespasser will enable the former to maintain trespass. But it is not merely going on the land in the possession of another that will have that effect. It must be an entry for the purpose of taking possession, which may be evinced by acts of ownership on the land, as plowing it, or the like Butcher v. Butcher, 7 Barn. Cress., 399), or by a formal declaration of the intention accompanying the entry. 2 Bl. Com., 312; 3 Bl. Com., 176. It might, perhaps, be questioned whether Mr. Hines' entry was of that character, as he merely warned the defendant that if he continued there he would be sued, which might have been in ejectment, perhaps, and not in trespass. But admit that Miss Hines might have brought trespass, or that her deed, if it had been made on the land, would have been operative (Carson v. Burnett,
The Court therefore approves the instructions to the jury.
PER CURIAM. No error.
Cited: Loftin v. Cobb,
(318)
