90 S.E. 14 | N.C. | 1916
The action was brought to recover a parcel of land in the town of Sanford outside of the defendant's right of way, and designated on the map filed in this Court with the record by the figures 1, 3, 4 and 5. It seems that the parties claimed from a common source of title, John W. Scot, and defendant also claimed the land by adverse possession for twenty years; and upon this branch of the case the court charged the jury as follows: "Adverse possession must be continuous. There must not be any break at all — no moment of time when the land is not occupied; but it must be an intention to take possession; and if possession must be such as to notify the public, generally, and the owners themselves, who claim title, that there is an adverse possession; and if you find that the defendant has had such possession as this, it would be your duty to answer the first issue "No" and the second issue "Yes.'"
This instruction was erroneous, as we have often decided that the possession may be adverse for the required period without being unceasing. Referring to adverse possession in Berry v. McPherson,
But the plaintiff contends that this error is harmless, as the defendant cannot acquire title to land by averse possession, and, if it can do so, there is not evidence of such possession for twenty years by defendant *168 (121)
[EDITORS' NOTE: THE MAP IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
and those under whom it claims. The position, in our opinion, is not tenable. The defendant could acquire title by grant or deed, and why not by adverse possession for twenty years, which tolled the entry originally, because there arose therefrom the presumption of a grant or deed? If the land had been conveyed to the defendant, and the act of acquiring and holding it was ultra vires, no one but the State could complain, and a private person would not be heard to attack the title on that ground. This question is learnedly discussed by Justice Ashe in Mallett v. Simpson,
At common law, corporations generally have the legal capacity to take a title in fee to real property. They were prohibited in England by the statutes of mortmain, but these statutes have never been adopted in this State, so that the common-law right to take an estate in fee, incident to a corporation (at common law), is unlimited, except by its charter and by statute. But the authorities go to the extent that even when the right to acquire real property, is limited by the charter, and the corporation transcends its power in that respect, and for that reason is incompetent to take title to real estate, a conveyance to it is not void, but only the sovereign (here the State) can object. It is valid until assailed in a direct proceeding instituted by the sovereign for that purpose. Leazern v. Hilegas, 7 Sarft., 313; Gonndie v. Northampton WaterCo., 7 Pa, St., 233; Bank v. Whiting,
A text-writer says: "Where a corporation, having the power to acquire and hold land for certain purposes only, takes a conveyance of land for a purpose not authorized, or takes more land than it is authorized to hold, the conveyance is not absolutely void, The State may proceed directly against it for exceeding the powers conferred upon it; but the question is solely between it and the State. Neither the grantor nor any other private individual can attack the conveyance in a suit by or against the corporation to recover the land. So long as the State remains inactive, no one can complain; for it would lead to infinite embarrassment if in suits by corporations to recover possession of their property inquires were permitted as to the necessity of such property for the purposes of their incorporation, and the title made to rest upon the existence of that necessity." Clark on Corporations (Ed. of 1897), p. 167.
There is evidence in this case, though, that the defendant had been using the lot in dispute for railroad purposes. In Raleigh v. Durfey,
We are also unable to agree to the proposition that there is no evidence of adverse possession by the defendant in this record. The evidence of several of the witnesses, and especially of J. W. Cunningham, and Dr. W. A. Monroe, was that the defendant "had been in possession of the land (which was fenced in January, 1914) for more than twenty years." The witness W. A. Monroe said he had lived in Sanford for twenty-two years and knew the land in question, and that the defendant had been in possession since he had lived there, and that he is resided within 20 or 250 feet from it. This carried the case to the jury under the authority of Bryan v. Spivey,
It is for the jury to determine finally, upon the evidence and under the instructions of the court, whether there has been adverse possession, in the sense of the law, sufficient to bar the plaintiff's original right of entry, or to divest his title if he had one. The testimony of a witness may, perhaps, be disregarded sometimes, if it clearly appears to be without any substantial basis, as said in Berry v. McPherson, supra; but the right to exclude it, if such exists, should be exercised sparingly and with great caution, lest the court invade the province of the jury, whose special function is to pass upon the facts.
But we are of the opinion that, in this record, there is to be found ample testimony of such a possession for twenty years as the law regards to be adverse, and which, if found by the jury to correctly embody the facts, will defeat the plaintiff's recover. We would refer particularly to the testimony of D. N. McIver, R. R. Riley, Primus Holmes, J. C. Gregson, J. K. Perry, J. W. Cunningham. Other witnesses testified to the same effect, and some as to the adverseness (125) of the possession, but not for the full time, though their testimony if it related to different years of the full period of time would go to the jury for what it is worth. *172
What will constitute adverse possession is a question we have often decided. It is such a possession as will expose the occupant to an action by the true owner, and which if continuous and notorious for seven years under color, or for twenty years without color, title being out of the State, will ripen into a perfect title. It consists in actual possession with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the lad in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state, such acts to be so repeated as to show that they are done in the character of owner, in opposition to the right or the claim of any other person, and not merely as an occasional trespasser. It must be as decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that the occupant is exercising thereon the dominion of owner. Loftin v. Cobb,
We do not, of course, pass upon the credibility of witnesses, as that is solely for the jury to consider and determine. The utmost limit of our province has been reached when we decide that there is some evidence for the jury; and we are not permitted to go beyond it. The jury are left to settle disputed questions of fact, without any intimation from us to the weight of the evidence or as to its preponderance.
There was error in the charge as above indicated, and, therefore, the case must be submitted to another jury.
New trial.
Cited: Alexander v. Cedar Works,
(126)