Coxe v. Carpenter
| Decision Date | 23 December 1911 |
| Citation | 73 S.E. 113,157 N.C. 557 |
| Parties | COXE et al. v. CARPENTER et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Polk County; Councill, Judge.
Action by Francis S. Coxe and others, as trustees and executors of Col. Frank Coxe, deceased, against K. J. Carpenter and others. Judgment for plaintiffs, and defendants appeal. Affirmed.
Where in trespass quare clausum fregit, defendants introduced a state grant for the land, but did not connect themselves therewith, its only effect was to show that the state claimed no interest in the land, and relieved plaintiff from showing such fact.
This was an action of trespass quare clausum fregit. The plaintiffs relied upon color of title and adverse possession. The defendants introduced a grant from the state, which covers the locus in quo but did not connect themselves with it, so that it had the effect only of showing that the title was out of the state. There was evidence tending to show that the plaintiffs, and those under whom they claim, had been in the actual possession of the land for more than 30 years claiming it as their own. The witness John Pack testified that he had lived on the Coxe plantation a little over 20 years, and has known the land in dispute for more than 20 years. Col. Frank Coxe had possession of it when he first knew it, and used it for "timber, wood, pine, and such," and would cut wood there nearly every day--firewood and stove wood. There was a great deal of chestnut timber on the land, and Coxe got boards and rails' from the land every once in a while. The witness cultivated a portion of the other part of the Elwood land and lived on it 13 years as a tenant of Col. Coxe; cultivated it part of the time, and while he lived there he got all the wood he needed from the land in dispute every year, as did the other tenants of Col. Coxe. The witness also stated that the land in dispute was not cleared, it being ordinary timber land, and "mighty little" of it could be cultivated. It was rough land, and "some of it you could not stand upon without holding to the bushes." The land was poor, and Coxe had been cutting timber on it all these years. He opened and laid out roads on it, in order to haul the wood off; one of the roads was there when he first took possession. There was much other evidence of the same kind. There also was evidence that the land was not fit for cultivation, but was only useful and valuable for its timber--it could not be cultivated profitably; and also that Coxe was using it, as indicated, for its timber, and reserving it for the purpose of subsequently getting a water supply; it being in evidence that he had run a level on the branch to see if there was fall enough to the place he lived, so that he could utilize the water, which he found to be the case. The case was submitted to the jury under an instruction as to what would constitute, in law, adverse possession, and the only question, as was admitted on the argument, is whether the facts we have stated, if found by the jury, were sufficient to constitute such possession. The jury rendered a verdict for the plaintiffs, and from the judgment thereon the defendants appealed.
Smith & Shipman, for appellants.
S. Gallert, for appellees.
The material issue in this case is easily apparent from the state of the proof and the admissions in the record. Plaintiffs did not have a paper title for the locus in quo, but relied solely upon their color of title and adverse possession. Defendants introduced a state grant for the land, but did not connect themselves with it. The only effect of this evidence was to show that the state claimed no interest in the land, and to relieve the plaintiffs from the necessity of showing that fact. But it is conceded that our decision must turn upon the character of plaintiffs' possession as being, or not, adverse, and sufficient in law to ripen their color into a good and perfect title to the land.
The evidence tends to show that the land was very barren and only fit for use as timber land. A large part of it was so steep and declivitous that it was necessary to hold to the bushes in order to stand and "keep your equilibrium." There was other evidence to the effect that the land was in the possession of plaintiffs, and those under whom they claimed, for many years, at least 30, and that Col. Coxe, who claimed the land (it does not appear under what title, except the color), occupied the land with those rightfully claiming under him, and asserted dominion over it for more than the period required by law to ripen the title; that he did not clear or cultivate any part of the land, because it was not fit for cultivation or clearing. It was mostly wild and unarable land, and only useful and valuable for the timber. It was...
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