87 N.C. App. 667 | N.C. Ct. App. | 1987
Defendants’ single assignment of error is that the trial court erred by entering judgment disposing of this case without affording them a jury trial. By objecting to the order of reference at the time of its entry, filing timely exceptions to the referee’s findings of fact, formulating and tendering issues based upon those exceptions, and demanding a jury trial on the issues, defendants have satisfied procedural requirements necessary to preserve their right to a jury trial. G.S. 1A-1, Rule 53(b)(2). Even though procedurally preserved, however, defendants’ right to a jury trial is not absolute. A jury trial after a compulsory reference is limited to the evidence taken before the referee, G.S. 1A-1, Rule 53(b)(2)c; defendants’ right to a jury trial depends upon whether
The trial court preliminarily determined, after reviewing the evidence taken by the referee and the referee’s report, that there was no material issue of fact with respect to the record title to the property and that plaintiff has superior record title. Defendants did not except to this ruling; we will not consider the argument to the contrary contained in their brief. App. R. 10. In any event, our review of the stipulations and evidence presented to the referee discloses no material factual issues with respect to record title. We agree with the trial court that plaintiff holds record title to the property superior to that of defendants. Submission of the issue of record title to a jury was not required.
Although it determined that the 1956 conveyance from Wallace Johnson gave plaintiff superior record title, the trial court concluded that the evidence before the referee raised a triable issue of fact as to whether defendants had, prior to 1956, acquired title to the property by adverse possession or by adverse possession under color of title. This issue of fact was not, however, deemed by the trial court to be material to the outcome of the case. In paragraph (iii), the trial court determined that, under all the evidence, plaintiffs possession of the property under color of title after the 1956 conveyance was sufficient to oust defendants, defeat any title which they may have previously acquired to the property, and ripen into fee simple title of the plaintiff. Furthermore, the court ruled, the evidence raised no issues of fact as to whether defendants had exercised sufficient possession of the property after 1956 to prevent plaintiff from acquiring title by adverse possession under color of title, or to establish defendants’ own title by adverse possession under color of title. It is in these determinations that the court erred.
Title to land may be acquired by adverse possession when there is “actual, open, notorious, exclusive, continuous and hostile occupation and possession of the land of another under claim of right or color of title for the entire period required by the statute.” Webster, Real Estate Law in North Carolina, § 286
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 land, 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 right or claim of any other person, and not merely as an occasional trespasser. It must be decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that he is exercising thereon the dominion of owner.
At the expiration of the requisite period of possession, the possessor acquires fee simple title to the land; a new title is created and the title of the record owner is extinguished. Webster, supra. It is presumed that possession of land is in the person holding legal title thereto, but the presumption is rebuttable. Memory v. Wells, 242 N.C. 277, 87 S.E. 2d 497 (1955). The party claiming title by adverse possession has the burden of proof on the issue. Crisp v. Benfield, 64 N.C. App. 357, 307 S.E. 2d 179 (1983).
No one disputes that the evidence taken by the referee created an issue of fact as to whether defendants acquired title to the disputed tract by adverse possession prior to 1956. If the jury should decide that issue in favor of defendants, plaintiffs superior record title would be extinguished and plaintiff would have the burden of proving that it had thereafter acquired title by adverse possession under color of title, relying upon the 1956 deed as col- or of title. See Christenbury v. King, 85 N.C. 229 (1881). On the other hand, if the jury should decide the issue of defendants’ pre-1956 adverse possession in favor of plaintiff, its record title would be good and defendants would have the burden of proving that they had subsequently, by adverse possession for the requisite period, extinguished plaintiffs title and established title in themselves. Thus, the question for determination is whether the evidence of the respective parties’ possession after 1956 is so clear as to permit but one inference, or whether genuine issues of fact are created. Where the evidence of adverse possession is conflicting, the issue is for the jury. Memory v. Wells, supra.
On the other hand, defendants offered evidence tending to show that they knew the boundaries of the land claimed by them, could describe those boundaries, and had pointed them out to the surveyors employed by them. Two of the defendants, John Oliver Randolph and Franklin Randolph, testified that after Federal had planted on the land, they continued to go upon the land and cut timber. There was testimony tending to show that defendants had stopped persons from cutting timber on the disputed property. On one occasion, defendants stopped a contractor from cutting trees which plaintiff had sold. Moreover, defendant John Oliver Randolph testified that after the tract was replanted, “I pulled some of the trees up and I called my nephew to help me pull some of them us [sic] and then I told him ‘Wait a minute [sic] don’t pull no more up, let it grow ’cause its on our land and we can cut it off.’ ” (Emphasis added.) Plaintiff did not object to his testimony concerning the ownership of the land, and it must, therefore, be accorded such probative weight as a jury may choose to give it. See Freeman v. City of Charlotte, 273 N.C. 113, 159 S.E. 2d 327 (1968); Hefner v. Stafford, 64 N.C. App. 707, 308 S.E. 2d 93 (1983). “This evidence was sufficient to warrant the submission of the . . . issue and to support the jury’s affirmative answer thereto.” Freeman, supra at 115, 159 S.E. 2d at 329.
The evidence taken by the referee raises factual issues regarding the respective parties’ actual possession of the disputed land subsequent to 1956, which issues are material to a resolution of this case. It is for the jury to decide, under proper instructions, whether the acts shown by the evidence constitute open, notorious and adverse possession. Memory, supra. “Whether there has been sufficient adverse possession to ripen title is a mixed question of law and fact, and its solution must necessarily depend upon the situation of the parties, the nature of the claimant’s title, the character of the land, and the purpose for which it is
For the foregoing reasons, we reverse the judgment entered for plaintiff and remand this case to the Superior Court of Brunswick County for jury trial upon the issues of adverse possession raised by the evidence.
Reversed and remanded.