Bynum v. Carter

• Decision Date: 30 June 1844
• Citation: 26 N.C. 310,4 Ired. 310
• Court: North Carolina Supreme Court
• Parties: TURNER BYNUM v. JOHN CARTER.

26 N.C. 310

4 Ired. 310

TURNER BYNUM

v.JOHN CARTER.

Supreme Court of North Carolina.

June Term, 1844.

The occupation of pine land, by annually making turpentine on it, is such an actual possession, as will oust a constructive possession by one, claiming merely under a superior paper title.

Where the extent of a wrong-doer's possession is so limited as to afford a fair presumption, that the party mistook his boundaries, or did not intend to set up a claim within the deed of the other party; it would be a proper ground for saying, that he had not the possession, or that it was not adverse. But it is otherwise, where the possession was wilful, open and notorious.

The entry of an owner upon a trespasser will enable the former to maintain trespass; but it must be an entry for the purpose of taking possession, which may be evinced by acts of ownership on the land as ploughing it or the like, or by a formal declaration of the intention accompanying the entry.

But although such entry be made, yet if the wrong doer continue his possession, the deed of the owner, not being made on the land and such adverse possession continuing, is not valid to pass a title to the land.

The cases of Carson v Burnett, 1 Dev. & Bat. 546, Green v Harman, 4 Dev. 158, and Carr v Carr, 4 Dev. & Bat. 179, cited and approved.

Appeal from the Superior Court of Law of Edgcomb County, at Spring Term, 1844, his HONOR Judge PEARSON presiding.

This was an action of trespass quare clausum fregit, commenced in May, 1841. The locus in quo is a slip of land, about half a mile long and from 100 to 150 yards wide, containing about 26 acres. The plaintiff shewed the title to be in Susan Hines on the first of September, 1840, as a part of a large tract, containing about 200 acres, which she sold and conveyed to the plaintiff by deed, bearing date the 1st September, 1840, and containing a general warranty, “except as to a small part claimed by Carter,” the defendant. Miss Hines was an infant until a short time before her sale to the plaintiff; and Richard Hines was her father and guardian, and kept a tenant on the land from 1828 to the date of the deed, but the tenant occupied the upper part of the tract and had no actual possession of any part of the 26 acres. The pleas were not guilty and liberum tenementum. On the trial the defendant shewed a patent to one Ellis, issued in 1822, for 57 1/4 acres of land and including the slip of 26 acres; and shewed further that in 1834 Ellis placed a tenant on his tract, who lived on a part of the tract without the limits of the 26 acres in dispute; but who, in that year, boxed all the pine trees suitable for making turpentine, as well within the disputed part as on the residue of the tract, and continued to cultivate the trees, in the usual way of making turpentine, regularly, every year up to the year, 1839, inclusive: And that in January, 1840, Ellis sold and conveyed to the defendant, who entered upon the lands and cultivated the same trees during the years 1840 and 1841. It appeared in evidence, that the process of making turpentine is, after the boxes are cut, to begin operations about the 1st of April, and chip the trees so as to allow the gum to exude and run into the boxes below, and every eight or ten days, after chipping particular trees, to dip the turpentine collected in the boxes and chip the trees afresh. This continues until about the 1st of October, when the gum ceases to flow, and that, which has become hard on the trees during the summer, is scraped down; which terminates the cultivation for that year. The trees then stand until the next Spring, when the process is renewed; and so from year to year until the trees become exhausted, which may be, according to the industry with which the business of chipping is plied, from five or six to ten years. No fencing or inclosure around the land is required. The slip of 26 acres consists of about ten acres of old field, grown up in young pines, and the residue of swamp, excepting a few spots on which the original growth of pines, fit for turpentine, stood, amounting to some thirty or forty or more. The locus in quo is situate on the edge of the swamp, and no road passed within sight of it. In August, 1840, Mr. Hines, at the request of his daughter, being in treaty for the sale of the land to the plaintiff, went on the disputed land, and found the defendant there tending the trees and making turpentine, and told him he must quit trespassing on the land or he would be sued. To that the defendant made no answer, but continued his operations, making two barrels of turpentine that year on this piece of land, and also renewing the business and carrying it on the next year, 1841. The deed from Miss Hines to the plaintiff was not executed on the land.

The defendant's counsel insisted that the plaintiff could not recover, because the defendant was in the actual adverse possession at the time the deed was executed to the plaintiff, and that the plaintiff never had such a possession as enabled him to maintain trespass. The plaintiff's counsel insisted that, there being no house nor enclosure of the defendant, the fact of his attending the turpentine trees did not amount to a continuing possession, but constituted so many distinct trespasses every time he went on the land, and as Miss Hines had a tenant on a part of the tract and had title, this gave her in law the possession of the whole: and, supposing that, when the defendant went on her land, this disturbed her possession for the time, still, the instant he went off, her constructive possession took effect again, and there was no proof of an actual possession by the defendant, at the time the deed was delivered. Secondly, that tending some thirty or forty turpentine trees, in an out of the way place, was not such an open and notorious possession, as the law required to divest the possession of the real owner. Thirdly, that the entry of Mr. Hines, as his daughter's agent, in August, 1840, revested the possession, so that she could then bring trespass, or make a deed to the plaintiff and enable him to bring the action.

The Court instructed the jury, that, up to the time when Mr. Hines came on the disputed land, the possession of it was in the defendant, by reason of the regular tending the turpentine trees by himself and those under whom he claimed; and that if the jury believed, that the defendant did not abandon his possession, after he was forbidden to trespass further, but...