Myrick v. Bishop, 8 N.C. 485, 1 Hawks 485 (1821)

Dec. 1821 · Supreme Court of North Carolina

8 N.C. 485, 1 Hawks 485

Myrick v. Bishop.

From Halifax.^*

Possession alone is sufficient to maintain trespass against a wrong-doer.

Trespass quare dansmn fregit. The Plaintiff exhibited on the trial below, a deed dated in 1812, to himself, including within its boundaries the locus in quo, and shewed that he was in actual possession of a part of the lands, and had been, but for a term of less than seven years $ and the trespass complained of was on the uncultivated part of said land, and on a part of which he had no actual occupation. The Defendant shewed no title or possession, but insisted that the loms in quo was vacant land.

The Judge charged the Jury, that if the land was vacant, the Plaintiff could not have such a constructive possession under his deed as would enable him to support an action of trespass •, but whether the locus in quo was vacant, he left for the Jury to say : that if the land had been granted, then the Plaintiff had a deed covering the land, and an actual possession of a part, though for less than seven years, and this gave him such a constructive possession of the whole, as would enable him to support, an action of trespass against a wrong-doer.

* This cause and the two immediately following it, were decided at June Term, 1821, but from accident were omitted in the report of cases of that Term.

Tayxor, Chief-Justice.

The Plaintiff, having a deed covering the land where the trespass was committed, and being in possession of part within the boundaries of the deed, was in actual possession of the whole. The deed ascertained the extent of the possession. ..Whoever is in possession, may maintain an action of trespass against a wrong-doer to his possession, because it is a possessory remedy, founded merely on the possession, an<* ^ i's n°t necessary that the right should come in question—(3 Burr. 1563—1 East 246.) The judgment mus£ j,e affirmed.

Henderson> Judge.

Possession alone is sufficient to maintain trespass against a wrong-doer—(1 East 244, Graham v. Feat, and the cases there cited, to wit, 3 Burr. 1563—2 Stra. 1238—Willes 221.) And it is consistent with first principles, and in fact would be strange if it were not so; for wretched would be the policy which required the title to be shewn in every instance where the peaceable possession was disturbed by an intruder who had no right. It would tend to broils and quarrels, and the possessor would resort to force to defend his possession, if the law afforded him no redress. It cannot, therefore, for a moment be doubted, that the law is as stated above $ and for myself, I would go farther, although my brethren do not deem it necessary to express an opinion on the point, that possession is prima fade evidence of title, and until the contrary shall appear, sufficient to maintain an action on the title against a wrongdoer, ex. gr. an action of ejectment. This of course has reference to a case where the title is shewn to be out of the State. I do not deem it necessary to say any thing on constructive possession, for in the case before us, the Plaintiff’s possession was an actual one; possession of any part of a tract of land, there being no conflicting occupation, is an actual, and not a constructive possession, of the whole tract. If any part is adversely occupied under an inferior title, the possession under the good title extends to the actual adverse occupation. Here there was no adverse occupation, and the actual 'possession of the Plaintiff was co-extensive with his deed. A constructive possession is where a person has title, but no possession, and there is no one in possession, it being vacant •, there the title draws to it the possession in law, or by construction of law. I think the rule for a new trial should be discharged, and judgment entered for the Plaintiff.

Hail, Judge, concurred.that judgment should be so rendered.