74 S.E. 347 | N.C. | 1912
BROWN, J., dissenting. The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE WALKER. This is an action to recover damages for a trespass on land in cutting and removing timber therefrom. The plaintiff claims *192 title under John Locklear, being his administratrix. It is not pretended that he had any paper title for the land, or color of title, but to show title in him the plaintiff relied solely upon John Locklear's adverse possession of the land for more than thirty years, under a claim of right, to take the title out of the State and vest it in him, and the real question in the case is whether he had such a possession of the land for a sufficient length of time to produce that result.
What is adverse possession within the meaning of the law has been well settled by our decisions. 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 (238) 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. Loftin v. Cobb,
So in Loftin v. Cobb, supra, it was held that cutting timber and making shingles in a swamp unfit for cultivation, continuously for seven years, is a good possession under the statute. "It is exercising that dominion over the thing and taking that use and profit which it is capable of yielding inits present state. It is all that can be done until the subject shall be changed. It is like the case stated in the books of cutting rushes from a marsh. This is sufficient, though it might appear that dykes and banks would make the marsh arable."
Again it was held in Williams v. Buchanan,
The evidence in this case may not be as strong as it was in the Coxecase, but we are unable to say that there was absolutely none. We are passing upon a judgment of nonsuit, and it is a familiar principle that the evidence is to be viewed in the light most favorable to the plaintiff. The facts which the testimony tended to establish in support of the plaintiff's contention may be thus briefly stated: John Locklear was 80 years old when he died, and had lived on the land nearly all his life. He first built a hut on it, which was his home so long as fit for habitation. In 1853 he left this part of the land, the lower end, and built on the same premises, at a different place and near the public road, the house in which he lived until 1897, the year of his death. He cleared and cultivated ten or fifteen acres of the land around his house; boxed the pine trees on the tract for turpentine; cut wood and cross-ties; ditched the land and cut paths through it for the purpose of boxing the trees and cutting the timber. One witness testified: "I knew the bounds he worked up to and cultivated all of my lifetime — the lands where John Locklear lived. I can tell you the bounds." He then stated (240) the names of the adjoining proprietors, and also that the land Locklear lived on and used was bounded by Batrix Bay, Mill Swamp, the Fayetteville and Lowrie roads. The turpentine boxes were cut and the trees "worked for turpentine" as far back as thirty-five years ago — about 1876. This suit was commenced 9 April, 1910. There was also evidence *194 that John Locklear had forbidden people to come upon the land for the purpose of boxing the trees, and driven them away on occasions at the point of his gun. There was much testimony of the kind we have stated, and some other facts and circumstances of more or less value in determining the character of the possession. There was evidence, it is true, tending to show that John Locklear's possession was not adverse or continuous; but upon a nonsuit we cannot consider it. It may be that the jury will find, upon the evidence now before us, or upon that and additional evidence at another trial, when the facts are more fully developed, that there was neither an adverse nor a continuous possession. We must now infer everything from the testimony in favor of the plaintiff, which it tends to prove. This rule will not be the one for the guidance of the jury when the issue of fact is submitted to them, but rather a contrary one, for the burden will then be upon the plaintiff to establish her case by a preponderance of the evidence. There is enough evidence in the record to carry the case to the jury, and the issue must be tried by them, under proper instructions of the court with reference to the real facts as they may find them to be.
Without stating it, we think there was some evidence to the effect that the defendants had cut timber from the land and sawed it into lumber, under such circumstances as to make them liable for the same if John Locklear was the owner of the land.
The motion to dismiss the appeal because the exceptions are not grouped is overruled. There was only one exception, which was taken to the judgment of nonsuit, and the error is thus sufficiently assigned. We so decided at the last term. There is no irrelevant or superfluous matter in the record. On a motion to nonsuit we must review the whole of the evidence. This should not be set out by question and answer, or by a full transcript of the stenographer's notes, but in (241) narrative form. On account of the peculiar nature of this appeal and the question presented, there has been no sufficient departure from the rules of this Court and statutory provisions to call for an affirmance of the judgment without considering the case on appeal.
New trial.
BROWN, J., dissenting.
Cited: Green v. Dunn,
