John L. Roper Lumber Co v. Works, (No. 21.)

• Docket Nº: (No. 21.)
• Citation: 84 S.E. 523, 168 N.C. 344
• Case Date: March 10, 1915
• Court: United States State Supreme Court of North Carolina

84 S.E. 523
168 N.C. 344

JOHN L. ROPER LUMBER CO.
v.
RICHMOND CEDAR WORKS et al.

(No. 21.)

Supreme Court of North Carolina.

March 10, 1915.

[84 S.E. 524]

Appeal from Superior Court, Camden County; Whedbee, Judge.

Action by the John L. Roper Lumber Company against the Richmond Cedar Works and another. From a judgment for plaintiff, defendant named appeals. No error.

This is an action to recover damages for a trespass on the plaintiff's land, known as the lots numbered 2 and 3 in the New Lebanon division, which was made in the year 1819. The trespass consisted in cutting roads on the land for the purpose of carting over it; the defendant justifying under a clause contained in the partition decree, reciting that it would be convenient in carting to the Cross Canal for one proprietor to have the free privilege of using the share of other proprietors for that purpose. Plaintiff asked for a restraining order to stop the trespass, which was at first granted, but afterwards vacated, and plaintiff appealed to this court, when the order was reversed, and the injunction directed to be continued to the hearing. 158 N. C. 161, 73 S. E. 902. Defendant at first admitted the title of plaintiff to lots 2 and 3, and set up the right to cross them; afterwards, by amendment, admitted plaintiff's title to lot No. 2, and formally denied the title to lot No. 3, and finally, by amendment, denied plaintiff's title to both lots, which defendant alleges was due to the unexpected decision of this court in Weston v. Roper Lumber Co.. involving the title to lots 1 and 4 in said division, as to the estoppel of a judicial partition between tenants in common. 162 N. C. 165, 77 S. E. 430. The other litigation between them concerned the title to lot 12 of said division, which was finally decided by this court in favor of the plaintiff, so that plaintiff has recovered lots 1 and 4, which bound the land in controversy on the east and west, lot 12, which bounds it on the north, the Cross Canal being its southern boundary. The jury, in this case, returned the following verdict:

"(1) Is the plaintiff, John L. Roper Lumber Company, the owner and entitled to the possession of the land described in the complaint, as alleged? Answer: Yes; the whole thereof.

"(2) If so, have defendants entered and trespassed thereon, as alleged? Answer: Yes.

"(3) If so, what damage has plaintiff sustained thereby? Answer: $75.00."

The decision of this matter turns chiefly on the plaintiff's adverse possession of lots 2 and 3. Judgment was entered upon the verdict, and defendant appealed.

Ward & Thompson, of Elizabeth City, and Winston & Biggs, of Raleigh, for appellant.

Small, MacLean, Bragaw & Rodman, of Washington, N. C, and J. Kenyon Wilson, of Elizabeth City, for appellee.

WALKER, J. (after stating the facts as above). [1] The defendant contends, as to both tracts, that plaintiff has had no such adverse possession as ripened his title under color, as the two tracts, designated as lots 2 and 3 in the New Lebanon division, were held by plaintiff and claimed by two separate deeds, and were, in fact and in law, to be taken and considered as two separate and distinct tracts of land, which would therefore require an adverse possession of each tract during the full period of limitation. It may be admitted, generally, that where the bar of the statute is pleaded, or the benefit thereof is relied on in any way, as to two separate pieces of land against the same claimant, an adverse holding of each must be made out for the requisite time by circumstances relating to the possession of each piece respectively, and mere possession of the one will not be extended so as constructively to include the other. A discussion of the question is not called for, as we are satisfied that there was an actual adverse possession of each tract under color for a sufficient length of time to ripen the title into a perfect one. The defendant's objection was not to the character of the possession, as not being adverse, but to the application of the doctrine of constructive possession to a case where there are two or more separate tracts of land, when it should be restricted to cases where there is only one tract involved. 1 Cyc. 1128. There was no error, therefore, as to lot No. 2.

The other question presented as to lot No. 3 is whether the plaintiff waived or abandoned all right to claim any benefit from its adverse possession of 6 1/2 years under the deed of Harrison E. Weston to it, dated 1st day of June, 1878, as color of title, by afterwards, December 19, 1884, taking a deed from H. E. Weston, John R. White, and others. Defendants contend that, at the time the last deed was made, they were tenants in common with H. E. Weston and the other persons named therein, but it may well be doubted if they have offered evidence sufficient in law to establish the fact under the rule laid down in Byrd v. Express Co., 139 N. C. 273, 51 S. E. 851, or whether they have connected themselves with the title of Samuel Weston, the first.

As tested by the clear weight of authority and the rule of reason, the general doctrine is that a person in adverse possession of land under color may purchase an outstanding title to the same land, without thereby preventing his possession from being longer adverse or breaking its continuity, and this is so, although the period fixed by the statute for perfecting his title, under color, had not then expired. The subject is so fully and lucidly treated by Circuit Judge William H. Taft, in Elder v. McCaskey, 70 Fed. (Circuit Court of Appeals) 529, especially at page 547, 17 C. C. A. 251, at page 269, that we could not do better than to reproduce what has there been said, and especially as the facts of that case are so clearly analogous to those now under consideration, the outstanding title being that of a tenant in common;

[84 S.E. 525]

"There remains to consider the contention of claimants, sustained by the court below, that, whether the possession of defendants was at any time adverse to the claimants, the disseisin was subsequently purged by recognition and acquiescence of defendants in claimants' title, so that avowed cotenancy ensued before the statute had run. This contention is chiefly rested on the purchase and acceptance by the defendants of deeds conveying to them outstanding interests of certain of the heirs of the brothers and sisters of William Barr, Sr., whose title was of the same character as that of claimants. It is well settled by binding authority that a veudee is not estopped to deny the title of his vendor. Robertson v. Pickrell, 109 U. S. 608, 614. 615, 3 Sup. Ct. 407 [27 L. Ed. 1049]; Watkins v. Holman, 16 Pet. 25, 54 [10 L. Ed. 873]; Willison v. Watkins, 3 Pet. 43 [7 L. Ed. 596]; Blight's Lessee v. Rochester, 7 Wheat. 535 [5 L. Ed. 516]. And the necessary conclusion from this is drawn, in the last-named case, that the person in possession of property under a claim of complete ownership has the right to fortify his title by the purchase of any real or pretended titles, without thereby holding possession in subordination to them. This is further supported by the decisions of many other courts to the same effect. Warren v. Bowdran, 156 Mass. 280 [31 N. E. 300]; Gardner v. Greene, 5 R. I.104; Chapin v. Hunt, 40 Mich. 595; Mather v. Walsh, 107 Mo. 121, 131 [17 S. W. 755]; Giles v. Pratt, 2 Hill (S. C.) 439. 442; Osterhout v. Shoemaker, 3 Hill [N. Y.] 513, 518; Tobey v. Secor, 60 Wis. 310, 312 [19 N. W. 99]. The following are cases where the possessor and defendant purchased outstanding titles of tenants in common with the plaintiffs in ejectment, and yet was held not to have thereby acknowledged the validity of the plaintiff's title: Pox v. Widgery, 4 Me. [Greenl.] 214; Jackson v. Smith, 13 Johns. [N. Y.] 406, 413; Northrop...