Branch v. Campbell, 52 N.C. 378, 7 Jones 378 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 378, 7 Jones 378

BRANCH AND THOMAS v. FLORA CAMPBELL.

One who was in adverse possession, cultivating turpentine, though not the owner of the land, was Held, nevertheless, the owner of the turpentine gathered, and might support the action of trover against the true owner of the soil for taking it.

ActioN of TROVER, tried before Shepherd, J., at the last Spring Term of Harnett Superior Court.

The plaintiffs showed that, in January, 1854, they were put into possession by one Cameron, of several thousand turpentine boxes, in Harnett county, and went upon a tract of landi where they cut a few thousand more, and during the spring-of that year, while occupying and working the land where ' these boxes had been made, and after the turpentine had run down into the boxes, the defendant dipped the turpentine out and carried it away. They showed the value of the turpentine and closed their case.

The defendants then offered, in evidence, two grants from the State, one in 1836, and one in 1850, covering the locus in quo, and offered to show themselves the owners, but the Court ruled that the grants, as evidence of title, were immaterial. The grants were then put in evidence for the purpose of showing the character and extent of possession in the defendants. The. defendants then showed that in 1853, they had cut boxes on part of the land within their grant, and that they forbade the entry of the plaintiffs when they began to work in 1854. They further showed, that they liad a tenant on some part of this land two. years before this time, and that one King liad also worked turpentine on a part of the land for one year, under a lease from them, but it'appeared that the boxes made and worked by King, were half a mile distant from those made by the plaintiffs. The defendant did not claim to have- made the boxes let by Cameron to Branch and Thomas, nor did she show any possession other than that set out.

The Court instructed the jury, that the plaintiffs were entitled to recover, if they had the actual possession of the land in the part where their boxes had been made, and if they had produced the turpentine which was dipped out and carried away by the defendants ; and further, the Court charged that if the.plaintiffs had worked these boxes during, the spring, in the usual course of turpentine cultivation, and were so doing when the defendants carried the turpentine off, this was such an actual possession as was sufficient for the action. The defendants excepted.

Verdict and judgment for the plaintiff’s. Appeal by the defendants.

B. F. Moore, N. McKay and Strange, for the plaintiffs.

T. C. Fuller, for the defendants.

Manly, J.

There is nothing in this case to distinguish it from the cases heretofore in this Court, involving the same matter of dispute, reported 5th Jones 16, and 6th Jones 16.

It can make rao difference that the defendants were in possession under grants covering the locus in quo before the entry of plaintiffs. The latter had entered and were, as the case affirms, in possession also. Each had a separate and distinct .possession, and in this state of facts the rights of the parties are decided by the cases referred to. Principles are there settled, entirely exclusive of the rights of the parties here.

It is settled, not only .in those cases, but also in previous adjudications, that the cultivation of pines, for turpentine, in the usual course of that business, is a possession of the land on which the}7 grow, and the true owner must regain the dominion, if he desire it, by an action of ejectment, 'and get the intermediate profits by the remedy appropriate to that right. To-allow one to seize the product of-another’s labor, as it may be severed from the land, would be to encourage amongst citizens, a resort t© force and oppression in the adjustment of their rights, and .lead, ultimately, to .anarch}7 and ruin.

Hence, it was held by this Court, in the cases between the parties, when they were before us on former occasions, that one, who -was in adverse possession, cultivating turpentine, though not the owner of the land, was, nevertheless, the owner of the turpentine gathered, and might support the action of trover against the true owner of the soil.

We have seen no reason to doubt the authority of these cases — there is no material difference between them and the case now presented, and there should, therefore, bo a similar disposition made of them..

Per Curiam,

Judgment affirmed.