Virginia-Carolina Tie & Wood Co. v. Dunbar

• Decision Date: 28 August 1939
• Docket Number: No. 4468.,4468.
• Citation: 106 F.2d 383
• Parties: VIRGINIA-CAROLINA TIE & WOOD CO., Inc., v. DUNBAR et al.
• Court: U.S. Court of Appeals — Fourth Circuit

106 F.2d 383 (1939)

VIRGINIA-CAROLINA TIE & WOOD CO., Inc., v. DUNBAR et al.

No. 4468.

Circuit Court of Appeals, Fourth Circuit.

August 28, 1939.

M. B. Simpson and John H. Hall, both of Elizabeth City, N. C., for appellant.

R. Clarence Dozier and W. I. Halstead, both of Elizabeth City, N. C., for appellees.

Before PARKER, Circuit Judge, and H. H. WATKINS and WYCHE, District Judges.

PARKER, Circuit Judge.

This is an appeal by plaintiff in an action to recover damages for trespass in the cutting of timber. The land involved is swamp land in Camden County, North Carolina, and plaintiff claims title thereto under deeds executed by the State Board of Education to one J. M. Burgess. Defendant denies that these deeds cover the land in controversy and also relies upon adverse possession under color of title. The jury found the issue as to ownership against plaintiff, and from judgment in accordance with this verdict plaintiff has appealed. The questions presented by the appeal are thus stated in the original brief of plaintiff's counsel, viz.: "1. Did the Court commit error in refusing to direct a verdict for appellant? 2. Did the Court commit error in admitting certain testimony of the witness, P. D. Burgess, as to the location of deeds under which defendants claimed? 3. Did the Court commit error in its charge as to the time of possession necessary to ripen title?"

The first question does not properly arise upon the record; for, although plaintiff's counsel did move for a directed verdict and excepted to the refusal of the court to grant same, the record does not show that they stated any grounds of motion, as expressly required by rule 50(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Prior to the adoption of this rule, there was conflict in the decisions of the federal courts as to the necessity for stating the grounds of a motion for directed verdict. New York Life Ins. Co. v. Doerksen, 10 Cir. 75 F.2d 96, 100. Rule 50(a) has settled that conflict, however, by providing that "a motion for a directed verdict shall state the specific grounds therefor". Moore Federal Practice, vol. 3, p. 3107; Simpkins Federal Practice, 3d ed., p. 480. And we think it important that this requirement of the rule be observed, particularly in view of the enlarged powers granted the court with respect to such motions by rule 50(b), as otherwise judgment might be entered on such a motion after the close of the trial and on a ground which could have been met with proof if it had been suggested when the motion was made. We do not mean to say that technical precision need be observed in stating the grounds of the motion, but merely that they should be sufficiently stated to apprise the court fairly as to movant's position with respect thereto. We doubtless have the power to consider such motion even though the grounds be not stated, if in our opinion this is necessary to prevent a miscarriage of justice; but in ordinary cases, such as that which is here presented, the grounds of the motion must be stated to avail movant in this court.

We think it not improper to say, however, that had the motion stated the grounds set forth in the brief filed before us by plaintiff, the action of the court below in overruling it would have been proper. A careful perusal of the record shows that there was a real and substantial controversy as to whether the deeds to J. M. Burgess relied on by plaintiff covered the land in controversy. Burgess himself testified to the contrary, saying that he was present when the boundaries of his deeds were surveyed and that the southernmost corner of his land (marked 4 on the map) was 400 yards north of Becky's Bridge, a location which would place the disputed area entirely outside his boundaries. He testified also that the unmarked black gum relied upon by plaintiff as the beginning corner was not such corner at all, but that the true beginning corner was a marked black gum several hundred yards distant from it. The location of both deeds relied on by plaintiff depended upon the location of this black gum beginning corner; and, if it was not located properly, there was no proper location of the deeds under which plaintiff claimed.

In addition to this, there was abundant evidence to the effect that defendants and those under whom they claimed had been in adverse possession of the disputed area under known and visible lines and boundaries and under color of title for more than 21 years prior to the institution of suit, paying taxes thereon and cutting timber and fire wood and hauling woods mould therefrom. As the land was swamp land and defendant was making such use of it as was possible, the possession shown, if continued for the statutory period, would ripen into ownership. Patrick v. Jefferson Standard Life Ins. Co., 176 N.C. 660, 97 S.E. 657, 659; Sucro v. Worthington, 4 Cir. 104 F.2d 472. Plaintiff contends that there was an interruption of this possession, but no such interruption was shown. It is true that one of the witnesses was unable to testify to acts of possession while he was away during the war; but other witnesses showed that the possession relied on was continuous and uninterrupted. Because of defendant's evidence of adverse possession, therefore, as well as because of the controversy over the location of the deeds under which plaintiff deraigned title, questions for the consideration of the jury were presented and the motion for directed verdict was properly overruled.

The next question relates to the action of the court in overruling objections to the testimony of P. D. Burgess, when asked to identify the land covered by the deeds under which defendants claimed. The boundaries set forth in these deeds were read to the witness and he was allowed to state that he knew the lands embraced by them and to testify as to acts of possession by defendants and those under whom they claimed. Although no ground of objection was stated at the time, so far as the record shows, the objection is now made that the witness should not have been allowed to testify to acts of possession until the boundaries of the deeds were fitted to the lands by description of physical objects corresponding to the boundaries in the deeds. We think, however, that the examination was in accordance with the North Carolina rule to the effect that a witness may state that a deed covers land in dispute when he is stating facts within his own knowledge. Singleton v. Roebuck, 178 N.C. 201, 100 S. E. 313; McQueen v. Graham, 183 N.C. 491, 111 S.E. 860. The testimony, while involving a conclusion, meant no more as a practical matter than that the witness knew land having boundaries corresponding to those contained in the deeds read to him and that the acts of possession to which he testified occurred on that land. Whether the witness should have been required to locate the measurements and boundaries more specifically before testifying to the location of the land was a matter resting very largely in the discretion of the trial judge; and that the discretion was properly exercised appears from the fact that no effort was made by plaintiff on cross examination to challenge the witness's location.

But while, as indicated, we think the questions proper under the North...