State v. Calloway, 119 N.C. 864 (1896)

Sept. 1896 · Supreme Court of North Carolina

119 N.C. 864

STATE v. W. H. CALLOWAY, and FINLEY LOUDERMILK.

Indictment for Trespass — Defense—Bona Fide Claim of Bight — Public land — Entry.

1. An alleged entry of public lands without survey or grant from the State is insufficient ground upon which to base a claim thereto.

2. Where, in the trial of an indictment under Section 1070 of The Code, the defendant in support of his defense that he had entered upon the land under a bona fide claim of right, introduced in evidence an entry of public lands reciting that he had entered and located “ 640 acres in C. county on the head waters of W. creek, beginning- on a pine * * * and runs south-east 40 poles, thence north-east and various other courses so as to include 640 acres.” No survey was ever made and no grant obtained from the State ; Held, that the entry was insufficient to support a claim to the land.

This was a criminal action, tried before Norwood, J., and a jury at Pali term, 1896, of Caldwell Superior Court for the willful and unlawful entry upon the land of another and carrying off or being engaged in carrying off any wood or any other property whatsoever growing or being thereon.

It was shown in evidence that the defendant Louder milk made an entry on the 24th day of April, 1890, for 640 acres of land, making two calls, then saying various courses to the beginning. He never perfected said entry by obtaining a grant ; nor was the entry ever surveyed. He testified that this entry joined the land of the prosecutor Webb and it was not contradicted.

His Honor charged the jury that the entry was not sufficient ground upon which to predicate a Toonafide claim on the part of defendant Loudermilk, the defendants excepted. There was a verdict of guilty and defendants appealed from the judgment thereon.

Attorney General, for the State.

No counsel contra.

MoNtgomeey, J.:

The defendant was indicted under Section 1070 of The Code (no felonious intent being charged) for the willful and unlawful entering upon the lands of -the prosecutor and carrying off wood. In his defense and to show that he entered under a bona fide claim to the land, he introduced an entry expressed as follows: “ Entry, No. 6545 — F. T. Lowdermilk enters and locates 640 acres of land in Caldwell County, N. C., on headquarters of Wilson’s creek, beginning on a pine, F. T. Louder-milk’s corner, and runs southeast 40 poles, thence northeast, and various other courses so as to include 640 acres. Entered April 24, 1890, at 9 a. m.

F. T. LOUDERMÍLK.”

No survey was ever made under the alleged entry, and no grant made by the State. The defendant admitted that the land on which he entered adjoined those of the prosecutor. The court instructed the jury “ that the entry was not sufficient ground upon which to predicate a bona fide claim on the part of the defendant.” There was no error in the giving of this instruction to the jury. There was no sort of compliance by the defendant with the law in regard to the entry of public lands. The exception to the ruling of his Honor on the question of evidence becomes immaterial. The defendant had no defense.

No Error.