McCaskill v. Pegram Farm & Lumber Co., 169 N.C. 24 (1915)

April 28, 1915 · Supreme Court of North Carolina

169 N.C. 24

J. M. McCASKILL et al. v. PEGRAM FARM AND LUMBER COMPANY.

(Filed 28 April, 1915.)

1. Limitation of Actions — Deeds and Conveyances — Color—Adverse Possession — Title Out of State — Twenty-one Years.

Where in an action to recover lands a party claims under a grant from the State and mesne conveyances, and fails to show a connected paper title by not locating the lands within the description of the grant, it is necessary for him to show adverse possession of a sufficient character for twentv-one years under color to take the title out of the State and vest it in himself.

2. Limitation — -Deeds and Conveyances — -"Color”—Adverse Possession — Character of Possession — Evidence Sufficient.

The continuity and character of possession necessary to ripen the title of the claimant under color is held sufficient which shows the paper title of the claimant, that the land was woodland, uncleared and unprofitable to cultivate, and that he and those whose previous possession inures to his benefit had supplied themselves with wood, of which they used a great deal, and had hut little woodland on an adjoining tract whereon they lived; that the land had been bought to obtain this wood supply; that their possession of this character had been continuous for the statutory period, and no adverse claim had been made upon the land before the institution of the present action. LocJclear v. Savage, 159 N. C., 236, cited and applied.

Appeal by plaintiff from Lane, J., at December Term, 1914, of Eich-Mom.

Action to recover land. Tbe plaintiffs alleged that tbey were tbe owners of tbe land in controversy, and tbis was denied by tbe defendant.

At tbe conclusion of tbe evidence bis Honor entered judgment of non-suit upon motion of tbe defendant, and tbe plaintiffs excepted and appealed.

John P. Cameron and M. W. Nash for plaintiffs.

Adams, Armfield & Adaans, and Stack & Parker, and Lowdermilh & Dockery for defendant.

AlleN, J.

Tbe plaintiffs bave failed to sbow a connected ebain of title to tbe land in controversy, as tbey did not locate tbe grant introduced in evidence, and tbey must rely on an adverse possession for twenty-one years under color to take tbe title out of tbe State and vest it in themselves. Mobley v. Griffin, 104 N. C., 112. Tbey introduced in evidence a deed to tbeir father, who is dead, dated 14 February, 1880, and registered 12 December, 1885, which is color of title, and offered evidence -that tbis deed covered tbe land in dispute.

Tbe question, therefore, presented by tbe appeal is whether any evidence of adverse possession was introduced which ought to bave been submitted to tbe jury, and in passing upon tbis question we bave no right to determine tbe weight-or sufficiency of tbe evidence, but simply to determine whether there was any evidence of the fact, giving to it tbe construction most favorable to tbe plaintiffs.

Tbe authorities on what is necessary to constitute an adverse possession are fully reviewed in Locklear v. Savage, 159 N. C., 236, and it is there said; “It consists in 'actual possession, with an intent to bold solely for tbe possessor to tbe exclusion of others, and is denoted by tbe exercise of acts of dominion over the land in making the ordinary use and taking tbe ordinary profits of .which it is susceptible in its present state, such acts to be so repeated as to show that tbey are done in tbe character of owner, in opposition to right or 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 he is exercising thereon the dominion of owner. Loftin v. Cobb, 46 N. C., 406; Montgomery v. Wynns, 20 N. C., 527; Williams v. Buchanan, 23 N. C., 535; Burton v. Carruth, 18 N. C., 2; Gilchrist v. McLaughlin, 29 N. C., 310; Bynum v. Carter, 26 N. C., 310; Blount v. Simpson, 14 N. C., 34; Tredwell v. Reddick, 23 N. C., 56.”

Applying this rule, we are of opinion there was evidence of an adverse possession which ought to have been submitted to the jury.

The evidence of the plaintiffs tended to prove that the land in controversy is woodland; that there is no house on it; that up to the time of the entry of the defendants, about 1910, none of it had been cleared, and that it could not be cultivated profitably; that the father of the plaintiffs and, after his death, their mother lived oh another tract of land about a mile distant; that there was very little wood on the land on which they lived; that their father was a school teacher and used a great deal of wood, and that the land was bought for wood.

J. M. McCaskill testified that his father died in 1888, leaving two children, who are the plaintiffs; that he stayed at home with his father and mother from the time the land was bought until the fall of 1887; that after he left home, in 1887, he returned five or six times each year; that the land in controversy was bought for the purpose of getting wood and lightwood from it; that up to the time he left home he hauled wood and lightwood from the land; that he cut blackjack on the land and burned it for ashes; that he hauled wood and lightwood from the land every winter and all during the winter; that this was done every year while he was at home; that after his father died, his mother took charge of the land, and that she used it as it was used when he was at home; that his mother married a Mr. Hart about 1898, and that it was used by them as it had been before; that it had been used every year since it was bought; that Mr. Hart had blackjack cut on the land and they had to get wood and lightwood from it all the time; that no one ever disputed their title to the land up to the time of the entry by the defendant, and that the land was worked by different persons for them.

C. W. McCaskill, another plaintiff, testified that he was 7 years old when his father died, and that he did not leave home until about 1900; that he used the land for lightwood, with his father’s permission; that the land was used each year for getting wood and lightwood; that his mother used it for turpentine; that from 1900 to 1910 his stepfather was using the land for the purpose of getting wood and lightwood; that after he left home he returned each year and saw how the land was used; that they got their winter’s wood from the land each year as long as he stayed at home, and also their wood for the summer from the land.

Daniel McQueen, a witness for tbe plaintiffs, testified that be was more than 60 years old; that be worked on tbe land for Mr. McCaskill, father of tbe plaintiffs, while be was living; that be worked for him every year; that be got wood and lightwood for him until be died; that be worked on tbe land after be died; that be hauled wood and lightwood and cut blackjack and cut down trees; that be got wood and lightwood off tbe land more or less every year that Mr. Hart was living; that be commenced working on tbe land for Mr. McCaskill and then worked on it for Mr. Hart, and that be thinks be worked on it as long as twenty-one years or more.

■ There was other evidence introduced in behalf of tbe plaintiffs tending to corroborate tbe evidence of these witnesses.

Reversed.