Carswell v. Town of Morganton

• Citation: 236 N.C. 375,72 S.E.2d 748
• Decision Date: 29 October 1952
• Docket Number: No. 313,313
• Parties: CARSWELL, v. TOWN OF MORGANTON.
• Court: United States State Supreme Court of North Carolina

Page 748

72 S.E.2d 748

236 N.C. 375

CARSWELL, v. TOWN OF MORGANTON.

No. 313

Supreme Court of North Carolina.

Oct. 29, 1952

Mull, Patton & Craven, Morganton, for plaintiff, appellant.

John H. McMurray, Morganton, for defendant, appellee.

ERVIN, Justice.

This question arises at the threshold of the appeal: Does the plaintiff's evidence suffice to show that his supposed predecessor, Joel Walker, acting through tenants, acquired title to all the land embraced within the boundaries of the tracts in controversy by twenty years adverse possession under known and visible lines and boundaries within the purview of the statute codified as G.S. § 1-40?

This question must be answered in the negative for the very simple reason that there can be no constructive possession by one holding land adversely unless he holds under color of title.

An adverse possessor of land without color of title can not acquire title to any greater amount of land than that which he has actually occupied for the statutory period. Georgia-Carolina Land & Timber Co. v. Potter, 189 N.C. 56, 127 S.E. 343; Rhodes v. Ange, 173 N.C. 25, 91 S.E. 356; Anderson v. Meadows, 162 N.C. 400, 78 S.E. 279; May v. Manufacturing & Trading Co., 164 N.C. 262, 80 S.E. 380; Berryman v. Kelly, 35 N.C. 269; 2 C.J.S., Adverse Possession, § 181. He cannot enlarge his rights beyond the limits of his actual possession by a claim of title to other land abutting that which he actually occupies, even though such other land may be defined by marked boundaries. Logan v. Fitzgerald, 87 N.C. 308; Bynum v. Thompson, 25 N.C. 578.

The reason for the rule restricting one who holds adversely without color of title to the amount of land actually occupied by him was well stated by that great jurist, Chief Justice Ruffin, more than a century ago. He said: 'But the question is, what is possession for that purpose? Plainly, it must be actual possession and enjoyment. It is true, indeed, that if one enters into land under a deed or will, the entry is into the whole tract described in the conveyance, prima facie, and is so deemed in reality, unless some other person has possession of a part, either actually or by virtue of the title. But when one enters on land, without any conveyance, or other thing, to show what he claims, how can the possession by any presumption or implication be extended beyond his occupation de facto? To allow him to say that he claims to certain boundaries beyond his occupation, and by construction to hold his possession to be commensurate with the claim, would be to hold the ouster of the owner without giving him an action therefor. One cannot thus make in...