Georgia-Carolina Land & Timber Co. v. Potter

• Citation: 127 S.E. 343,189 N.C. 56
• Decision Date: 24 January 1925
• Docket Number: 589.
• Parties: GEORGIA-CAROLINA LAND & TIMBER CO. v. POTTER ET AL.
• Court: United States State Supreme Court of North Carolina

127 S.E. 343

189 N.C. 56

GEORGIA-CAROLINA LAND & TIMBER CO. v. POTTER ET AL.

No. 589.

Supreme Court of North Carolina

January 24, 1925

Appeal from Superior Court. Clay County; Harding, Judge.

Action by the Georgia-Carolina Land & Timber Company against J. W Potter and others. From judgment for defendants, plaintiff appeals. New trial granted.

Instruction that possession at any place under grant would mature title to outermost bounds thereof held error.

The action is for trespass in wrongfully cutting timber by defendants, shortly before action brought, on lands alleged to belong to plaintiffs. The suit was commenced by issuing summons January 5, 1923, on defendants, the Towns Company, J W. and Eli Potter, and H. C. Moore, served shortly thereafter, and on May 7, 1923, the other defendants made themselves parties alleging ownership of lands on which the alleged cutting of timber took place.

Plaintiff offered in evidence three grants conveying the land in controversy to W. H. Herbert, issued on December 18, 1865 and introduce mesne conveyances conveying the lands therein granted to the present plaintiff. These three grants numbered respectively Nos. 2784, 2804, and 2826, covering contiguous lands, purport to corner on a chestnut at H, and are shown on the map below as follows: 2784 as H, 1, 2, 3, H; 2804 as H, 4, 5, 6, H; 2826 as H, 7, 8, 4, H.

Defendants introduced two grants constituting a lappage on the lands claimed by plaintiff's grants:

(1) No. 16634, dated Dec. 30, 1905, and shown on map below as A, B. C, D, E, G, H, Z, J, K, L, M, N, O, and various courses to the beginning at A.

(2) Grant 7499, dated January, 1886, and shown on map as 10, 9, Y, C, D, E, Q, R, 10.

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Defendants, admitting the cutting of trees, claimed to have acquired title by adverse possession to so much of the lands in plaintiff's boundaries, if established, as their own grants cover. The cutting of timber complained of by defendants and their assignees took place, as stated, a short while before action brought, and was chiefly on the lappage shown by the grant No. 16634, and if said cutting is established as wrongful, parties have agreed on the amount of damage. In addition to the denial of any wrong or injury, defendants, in their answer, aver their ownership of lands covered by grants Nos. 7499 and 16634, having shown mesne conveyances or descent from said grantees, and ask that the alleged claim of plaintiff be removed as a cloud on their title. The cause was submitted to the jury and verdict rendered on the following issues:

"(1) Is the plaintiff the owner of the land described in the complaint and reply, or any part thereof, and, if so, what part? Answer: Yes, with the exception south from Z to X.

(2) Are the defendants H. C. Moore and others the owners of entry 417, grant 92, described in the answer? Answer: Yes, by consent of all parties.

(3) Are said defendants the owners of entry 2381, grant 7499, described in the answer? Answer: Yes, all.

(4) Are the defendants interpleaders the owners of entry No. 11, grant No. 81, or any part thereof; and, if so, what part, as alleged in the answer? Answer: Yes, by consent of all parties.

(5) Are the defendants the owners of entry 896, grant 16634, as alleged in the answer, or any part thereof, and, if so, what? Answer: Yes, all.

(6) Did the defendant J. W. Potter, doing business under the name of Towns County Lumber Company, wrongfully and unlawfully cut and remove timber from said entry 6771, as alleged in the complaint? Answer: No.

(7) What damage, if any, are the plaintiffs entitled to recover of the defendant J. W. Potter, doing business under the name of Towns County Lumber Company, for such wrongful cutting and removing of timber, as alleged in the complaint? Answer: Nothing."

Judgment on the verdict for defendants, and plaintiff excepted and appealed, assigning errors.

Anderson & Gray, of Hayesville, R. L. Phillips, of Robbinsville, Francis J. Heazel, of Asheville, and D. Witherspoon, of Murphy, for appellant.

Moody & Moody and M. W. Bell, all of Murphy, for appellees.

HOKE C.J.

The jury, by their verdict, having established the location of plaintiff's grants, bearing date in 1865 and covering the locus in quo, it is incumbent on the defendants, asserting ownership by adverse possession and on the facts of this record, to show occupation under color of title for the requisite period, or they must establish by the greater weight of the evidence actual occupation of the land claimed and in the assertion of ownership under known and visible lines and boundaries adversely to all others for 20 years next before action brought.

In regard to defendants' alleged ownership of the land covered by their grant No. 16634, which as we understand the record will include the greater part of the trespass complained of, that grant bears date in 1905 and comes under our statute on the subject, C. S. § 7545, in terms as follows:

"Every entry made, and every grant issued, for any lands not authorized by this subchapter to be entered or granted, shall be void; and every grant of land made since the sixth day of March, one thousand eight hundred and ninety-three, in pursuance of the statutes regulating entries and grants, shall, if such land or any portion thereof has been heretofore granted by this state, so far as relates to any such land heretofore granted, be absolutely void for all purposes whatever, shall confer no rights upon the grantee therein or those claiming under such grantee, and shall in no case and under no circumstances constitute any color of title to any person."

Under the force and effect of this statute, therefore, this grant of defendants can afford no color of title for this claim, and defendants' ownership must be established, if at all, by actual occupation, and under known and visible lines and boundaries. Speaking to the character of the possession required for the maintenance of such a claim, in May v. Manfg. Co., 164 N.C. at pages 262-265, 80 S.E. 380, 382, the court, among other things, said:

There must be "actual possession, * * * some possession of a hostile character sufficiently definite and observable to apprise the true owner that his proprietary rights are being invaded, and of the extent of the adverse claim.

"Where one is in possession under color of title, having definite lines and boundaries, the calls and descriptions of the deed may be sufficient, but where there is no deed or color giving description of the property, there actual possession must be shown. It is not always required for this purpose that there should have been an inclosure or a clearing defining the full extent of the claim. As indicated by the statute, it may be sufficient to show possession 'ascertained and identified under known and visible lines and boundaries.' Revisal, § 380. But when it is sought to extend the effect of an adverse occupation beyond an actual inclosure or clearing and up to marked lines and boundaries, there must be some evidence tending to connect the physical occupation with the boundaries claimed or some exclusive control and dominion over the unoccupied portion sufficiently definite and observable, as stated, to apprise the true owner of the extent of the adverse claim"--citing, among other authorities, Davis v. McArthur, 78 N.C. 357; Wallace v. Maxwell, 32 N.C. 110, 51 Am. Dec. 380; Id., 29 N.C. 135-137; Bynum v. Thompson, 25 N.C. 578; Wade v. McDougle, 59 W.Va. 113, 52 S.E. 1026; De Frieze v. Quint, 94 Cal. 653, 30 P. 1, 28 Am. St. Rep. 151.

The opinion then quotes from Bynum v. Thompson, supra, as follows:

"It is admitted, that upon a long possession, all necessary assurances may and ought to be presumed. But the question is: What is possession for

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