Sample v. John L. Roper Lumber Co.
63 S.E. 731
N.C.
1909
Check Treatment
Hoke, J.,

after stating the case: In McCoy v. Lumber Co., 149 N. C., 1, this Court held, in effect, that where one having a deed for real property, or, being in possession, claiming to own the same in fee, conveys or grants to another a lesser estate in the property or„a restricted interest therein, and there is evidence tending to show that the grantee took in recognition of the grantor’s right as the true owner, the parties to such a transaction, in any litigation between them involving the title, come within the principle very generally recognized, that when it appears that both parties to a suit claim under the same title, neither, as a general rule,' shall be beard to °deny or question the validity of the common source of their respective claims. In the present case there is ón the face of the instrument evidence which tends to show that the plaintiffs, claiming to be the owners of the property, sold to the defendant a restricted interest therein, to wit, the standing timber of given dimension, and that defendant bought the timber in recognition at the time of plaintiffs’ claim as owner of the land, and there was no error, therefore, in denying motion for nonsuit, made by defendant on the ground that there was no evidence tending to sustain plaintiffs’ claim of title. In the same case (McCoy v. Lumber Co., supra) the Court referred to several well-considered decisions upholding the position that this principle, which prevented parties litigant from questioning the validity of the title under which they both claimed, was not in strictness an estoppel, but “a rule of justice and convenience, adopted by the courts to relieve the plaintiff in ejectment from the necessity of going back of the common source and deducing title from the State,” *165 and that it was subject to the exception that a defendant was allowed to show there was a title outstanding superior to this common source, and that he had acquired it. Christenbury v. King, 85 N. C., 230. In this case Ashe, J., for the Court, said: “It is well settled as an inflexible rule that where both parties claim under the same person neither of them can deny his right, and then as between them the elder is the better title and must prevail. * * * To this rule there is an exception when the defendant can show a better title outstanding and has acquired it.”

Applying the principle indicated in this exception, we are of opinion that there was error in holding that the evidence offered, tending to show that defendant had acquired the title of John Gray Blount, was irrelevant and immaterial. Such a position would be to give the general rule’ relied upon by plaintiffs to establish their title the force and effect of a strict estoppel; whereas it yields to the exception stated, that defendant is allowed to show a better title outstanding, and that he has acquired it, and if to a part of it he should be allowed to reduce the recovery by such part. It may be -that, notwithstanding this proposed testimony, the plaintiffs’ title may prove the true one, but we think the evidence offered tended at least to show that defendant had brought itself within the recognized exception as to part of the land, and it was error to exclude it or to hold that it had no significance. It may be well to .note that this is not an action to recover possession of the land. It may be that in such case the defendant, having entered under plaintiffs’ permit and license, would be required to surrender possession so acquired before asserting its claim; but this is an action for damages for wrongfully cutting timber, and, if defendant has in fact the true title, to allow recovery by plaintiffs would be to hold defendant responsible for cutting its own timber, a result that should not be sanctioned or allowed.

There is no merit in defendant’s exception as to the statute of limitations. True, the statute declares that actions for trespass on real estate shall be barred in three years, and when the trespass is a continuing one such action shall be commenced within three years from the original trespass and not thereafter; but this term, “continuing trespass,” was no doubt used in reference *166 to wrongful trespass upon real property, caused by structures permanent in tbeir nature and made by companies in the exercise of some quasi public franchise. Apart from this, the term could only refer to cases where a wrongful act, being entire and complete, causes continuing damage, and was never intended to apply when every successive act amounted to a distinct and separate renewal of the wrong. In this case every wrong invasion of plaintiffs’ property amounted to a distinct, separate trespass, day by day, and for any and all such trespasses coming within the three years the defendant is responsible..

For the error heretofore indicated there should be a new trial of the issues, and it is so ordered.

New Trial.