Locklear v. Savage

• Decision Date: 27 March 1912
• Citation: 74 S.E. 347,159 N.C. 236
• Parties: LOCKLEAR v. SAVAGE et al.
• Court: North Carolina Supreme Court

74 S.E. 347

159 N.C. 236

LOCKLEAR v. SAVAGE et al.

Supreme Court of North Carolina

March 27, 1912

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

Action by Katie Ann Locklear, administratrix, against W. A. Savage and others. From a judgment for defendants, plaintiff appeals. Reversed, and new trial granted.

The evidence should be incorporated in the appellate record in narrative form, and not in the form of question and answer.

Britt & Britt and McNeill & McNeill, for appellant.

McLean Varser & McLean, and McIntyre, Lawrence & Proctor, for appellees.

WALKER J.

This is an action to recover damages for a trespass on land, in cutting and removing timber therefrom. The plaintiff claims title under John Locklear, being his administratrix. It is not pretended that he had any paper title for the land, or color of title; but to show title in him the plaintiff relied solely upon John Locklear's adverse possession of the land for more than 30 years, under a claim of right, to take the title out of the state and vest it in him, and the real question in the case is whether he had such a possession of the land for a sufficient length of time to produce that result.

What is "adverse possession" within the meaning of the law has been well settled by our decisions. It consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the land, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state; such acts to be so repeated as to show that they are done in the character of owner, in opposition to right or claim of any other person, and not merely as an occasional trespasser.

It must be decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that he is exercising thereon the dominion of owner. Loftin v Cobb, 46 N.C. 406, 62 Am. Dec. ]73; Montgomery v Wynns, 20 N.C. 667; Williams v. Buchanan, 23 N.C. 535, 35 Am. Dec. 760; Burton v. Carruth, 18 N.C. 2; Gilchrist v. McLaughlin, 29 N.C. 310; Bynum v. Carter, 26 N.C. 310; Simpson v. Blount, 14 N.C. 34; Tredwell v. Riddick, 23 N.C. 56. So in Loftin v. Cobb, supra, it was held that cutting timber and making shingles in a swamp unfit for cultivation, continuously for seven years, is a good possession under the statute. "It is exercising that dominion over the thing and taking that use and profit which it is capable of yielding in its present state. It is all that can be done until the subject shall be changed. It is like the case stated in the books of cutting rushes from a marsh. This is sufficient, though it might appear that dykes and banks would make the marsh arable." Again, it was held in Williams v. Buchanan, 23 N.C. 535, 35 Am. Dec. 760, that, as to a stream not navigable, keeping up fish traps therein, erecting and repairing dams across it, and using it every year during the entire fishing season for the purpose of catching fish, constitute an unequivocal possession thereof.

The possession must, of course, be not only adverse, as we have defined it, but open, notorious, and continuous, and the extent of it must be shown by known and visible boundaries. The doctrine was explained and illustrated in the recent case of Coxe v. Carpenter, 157 N.C. 557, 73 S.E. 113, in which we said, referring to the evidence in that case "The jury may well infer that these acts were those of ownership, and not those of an occasional trespasser; and that they were repeated and continuous for a considerable period of time. The possession was as decided and notorious as the nature of the land would permit, and offered unequivocal indication that plaintiff and his father were exercising the dominion of owners, and were not pillaging as trespassers. Williams v. Buchanan, 23 N.C. 535, 35 Am. Dec. 760; Tredwell v. Reddick, 23 N.C. 56; Hamilton v. Icard, 114 N.C. 538, 19 S.E. 607; Simpson v. Blount, 14 N.C. 34; Baum v. Shooting Club, 96 N.C. 310, 2 S.E. 673. It is true that, in proving continuous adverse possession under color of title, nothing must be left to mere conjecture. The testimony must tend to prove the continuity of possession for the statutory period, either in plain terms or by 'necessary implication.' Ruffin v. Overby, 105 N.C. 83, 11 S.E. 251. This possession need not be unceasing, but the evidence should be such as to warrant the inference that the actual use and occupation have extended over the required period, and that during it the claimant has, from time to time, continuously subjected the disputed land to the only use of which it was susceptible. Ruffin v. Overby, supra; McLean v. Smith, 106 N.C. 172, 11 S.E. 184; Hamilton v. Icard, supra. While the evidence offered is not necessarily conclusive, if taken to be true, as to the fact of...