Doe on demises of Ward v. Herrin, 49 N.C. 23, 4 Jones 23 (1856)

Dec. 1856 · Supreme Court of North Carolina

49 N.C. 23, 4 Jones 23

Doe on demises of JOHN WARD et al. vs. WILSON B. HERRIN.

A mere omission of the Judge to charge the jury on a particular point, where no specific instructions on it have been asked, is not error.

An interval of twelve months or thereabouts in the actual occupation of land, is fatal to a title, based upon an adverse possession of seven years, under color of title.

This was an action of ejectmeNt, tried before his Honor, Judge Caldwell, at the Special Term (December, 1856,) of Stanly Superior Court.

On the trial below, the lessors of the plaintiff showed title to the land in dispute, by a grant from the State, and by mesne conveyances to them.

The defendant relied on a grant from the State to himself, and one ‘William Crayton, of junior date, and a possession, under it, of seven years. It was- proved that in 1844, the year after the defendant’s grant was issued, a cabin had been erected on the premises, which was occupied by Crayton, as a dwelling, from some time in that year, up to the year 1847, or 1848, when he moved from it, with his family, and lived elsewhere “ for twelve months or thereabouts that no person .succeeded him in that occupation, and when he returned to it, at the end of that period, he found it vacant. Crayton then resumed and continued his occupation until 1851, at which time this suit was brought. One Oonmd Crayton tes-' titled that during the year, while William Crayton was absent from the land, “ he frequently saw persons working for gold on it; that he saw the branch muddy as though used for mining purposes, but could not say that the operations were continuous.”

The Court, in general terms, stated the evidence to the jury, but did not, in express terms, call their attention to the testimony of Conrad Crayton. For this defendant excepted.

The Court expressed an opinion that the interval of twelm months or thereabouts was fatal to the defendant’s title. For which the defendant further excepted.

Yerdict and judgment for the.plaintiff. Appeal.

Bryan, Moore and Hmyan, for plaintiff.

No counsel for defendant.

Battle, J.

The first question raised by the defendant in his bill of exceptions,-lias been too often decided by this Court to be now open for argument. A mere omission by the Judge to charge the jury upon a particular point, where no specific instructions upon it have been asked, is not error. Torrence v. Graham, 1 Dev. and Bat. Rep. 288 ; State v. O'Neal, 7 Ire. Rep. 253 ; Arey v. Stephenson, 12 Ire. Rep. 34.

The second exception is equally untenable. The interval of “ twelve months or thereabouts” in the actual occupation of the land by William Crayton, was fatal to the defendant’s claim of title upon an adverse possession of seven years under color of title. Holdfast v. Shepherd, 6 Ire. Rep. 361. In this respect, a claim by means of an adverse possession under the statute of limitations, differs essentially from one by means of a possession, raising the presumption of a grant. Reed v. Earnhart, 10 Ire. Rep. 516 ; Taylor v. Gooch, 3 Jones’ Rep. 467.

Nor can the testimony of Conrad Crayton help the defendant. The operations of the gold-hunters, spoken of by this witness, on the land, during William Crayton’s absence, were not such' as to constitute an adverse possession under the statute. The witness could not sa;y they were continuous, and they had quite as much the appearance of distinct trespasses, as of an actual occupation of the land ■ under a claim of title. This Court has decided, after a review of all the cases on the subject, that the cutting of trees and the feeding of hogs upon a tract of land susceptible of other uses and enjoyment, under a color of title for seven years, did not constitute such a possession as would bar an entry. Loftin v. Cobb, 1 Jones’ Rep. 406.

The acts of the gold-hunters, as proven in this case, ought not to have any greater efficacy. •

There is no error, and the judgment must be affirmed.

Pee CueiaM. Judgment affirmed.