Green v. Harman
| Decision Date | 31 December 1833 |
| Court | North Carolina Supreme Court |
| Parties | Den ex dem. JOSEPH GREEN v. RICHARD HARMAN. |
Where A has two conterminous grants and B another which covers a part of one of them and is the oldest, and a fence of A upon the tract to which he has title, runs very near the line of the two tracts and encloses a small portion of B's land which was also covered by A's grant, it was held B not being in possession:
1. That a possession of seven years gave A a title to all the land within his enclosure.
2. That the enclosure being of a part so small, that B might reasonably conclude it was a mere mistake in running the fence, it was not, as to him, an entry upon the land to which he had title, and was not an ouster of him beyond the enclosure.
3. That although cutting timber and overflowing the land of B, by A were not in themselves ousters of B, so as to constitute an adverse possession by A, yet these facts taken in connection with the fence running upon his land were proper to be left to the jury as testimony, from which they might infer an ouster.
EJECTMENT tried on the last circuit of LINCOLN, before Seawell, J.
The lessor of the plaintiff was not in possession, and to locate his grant, the plaintiff offered declarations, of one Sloan who was dead, which were not objected to by the defendant, and were received by the Judge. The plaintiff did not claim under Sloan. The plaintiff having made out a prima facie case, the defendant offered to prove a possession under color of title for more than seven years.
The premises in dispute are represented in the diagram by the lines AB CD.
The defendant established title to the lands represented by the lines a a a a, and b b b b, but his grants were both younger than that of the lessor of the plaintiff. To make out his possession, he offered to prove that he had built a mill at E, the pond of which extended near to the point A (represented by the dots), that this mill had been in existence more than seven years; and that during all that time he had been in the habit of cutting timber within the lines of his grant. But it appearing that all the land on which the timber was alleged to have been cut was arable, his Honor refused to receive the evidence, holding that neither of the facts offered to be proved, constituted a possession which, under the act of limitation, would give a title.
The defendant then offered to prove that he was the owner of another tract of land, represented on the diagram by the lines I I I I, which was in cultivation, and the fence of which, running on the line I a B I, for eleven panels, included a few feet at B, of the tracts, A B C D, and a a a a, and that this occupation had continued for more than seven years before the commencement of the present action.
His Honor informed the jury that every trespass which would sustain an action, would not, if continued for seven years, amount to a title. The possession must be obvious and visible, demonstrating unequivocally to the owner, that the wrongdoer intended a claim to the land; that if the fence in the present case made such an encroachment, as must necessarily show such an intent on the part of the defendant, the plaintiff would be barred by seven years acquiescence, but if it did not evince such an intent, then it did not constitute a defense to this action.
A verdict was returned for the plaintiff, and the defendant appealed.
It is contended on the part of the defendant, that the evidence of the declarations of Sloan were incompetent; and upon that ground that the judgment ought to be reversed. The objection was not made in the Superior Court; and this Court has not the means of knowing under what circumstances the evidence was received. It might have been by consent. The Court is of opinion that it cannot be made here; and for that reason overrules it, without deciding on the validity of the reasons urged in support of it.
The Court likewise concurs in the opinion of the Judge who tried the cause, that the overflowing the land by the mill pond, and the cutting of timber on it, do not singly or together, and by themselves, constitute a possession, on which the statute of limitations can operate.
The overflowing of land by an act not done on it, but by stopping a water course below, on one's own land, is not an ouster of the owner from the land overflowed. There is no entry, which is necessary to make a disseisin. The remedy for the injury is not trespass, but an action on the case for the consequential damages. (Howard v. Banks, 2 Bur., 1113.)
Hence, however long it may continue, it affords, ofitself, only a presumption of a grant of the easement, and not of the conveyance of the land.
The other question is not entirely clear of difficulty. The case does not state the extent to which the. timber was cut. But the Court rejected all evidence of it; which must be taken, to have been upon the principle, that if carried to the utmost length, it would be insufficient. There is much land in the State, of which nearly the whole value consists in the timber; its fertility not being sufficient to induce a prudent proprietor to erect habitations or clear a plantation on it. In such instances, the timber is frequently all taken off; and it would not seem easy to give more positive evidence of asserted ownership and of enjoyment, On the other hand, any rule that could be laid down would be so wanting in precision as to the extent to which the trespass should be carried, to constitute an ouster, as to leave the whole subject in uncertainty. It is safest to require an actual occupation, such as residence or cultivation; something to make it emphatically the party's close; which is in conformity to the ancient rule of the common law, and also to the application of it to our situation, as early made in this State, in the cases of Andrews v. Mulford, 2 N. C., 320; and Grant v. Winborne, 13 N. C., 56. Simpson v. Blount, 14 N. C., 34, has been relied on as an authority to the contrary. But that is an exception founded on necessity, and was so considered at the time. The land was swamp, of which no other use could be made in its natural state, but by taking off the timber; which was likened to cutting rushes annually in a marsh. There may be two other exceptions, founded on other grounds. An instance may be, the making of turpentine as practiced in the lower part of the State; which is an operation partaking perhaps, of the nature of cultivation. It cannot be pursued secretly, and does not consist of single acts of trespass, like cutting down trees, and carrying them away, but requires a
continued attendance on the land for a considerable portion of the year, and from year to year, as the same trees are worked for several years in succession. But even that has not yet been judicially pronounced sufficient, as far as I aminformed. In the case before the Court the land is of the character and quality presented by the general face of the country; and as to that we think the rule established.
His Honor here stated the facts and charge above set forth, as to the possession of the defendant near the point B,...
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