Monk v. City of Wilmington

• Decision Date: 19 December 1904
• Citation: 49 S.E. 345,137 N.C. 322
• Parties: MONK et al. v. CITY OF WILMINGTON.
• Court: North Carolina Supreme Court

49 S.E. 345

137 N.C. 322

MONK et al. v. CITY OF WILMINGTON.

Supreme Court of North Carolina

December 19, 1904

Appeal from Superior Court, New Hanover County; Justice Judge.

Action by John W. Monk and another against the city of Wilmington for damages for trespass to real estate. From a judgment for plaintiffs, defendant appeals. Reversed.

Douglas J., dissenting.

In an action for damages for trespass to real estate, where plaintiff claims title by adverse possession, the burden is on him to show continuous possession.

W. J Bellamy, E. K. Bryan, and H. McClammy, for appellant.

Jno. D Bellamy, Bellamy & Bellamy, T. E. Brown, and Empie & Empie, for appellees.

CONNOR J.

The plaintiff seeks to recover upon a title founded upon a disseisin followed by 20 years' adverse possession. It is conceded that the original trespass by the plaintiff's ancestor was wrongful. This does not necessarily mean that it was such an ouster as put the true owner to an action of ejectment, and thereby put the statute of limitations into operation. His honor correctly told the jury that such possession, to ripen into title, must be open, notorious, continuous, exclusive, adverse, etc. The defendant insists that this has not been shown. The plaintiff John W. Monk says that his father, after purchasing the 30 acres adjoining the locus in quo in 1876 or 1877, ran his fence in the manner described by him, which it is claimed covers the land. He continued such occupancy as he had until his death, in 1882. His wife remained in the occupation of the same character until her death, in 1885. Thomas J. Kenan, one of the plaintiff's witnesses, the husband of the feme plaintiff, testified: ""After she died, my wife and Jno. W. Monk rented the land to one Dodge. My wife and Mr. Monk made a division of the land in 1886. After division I put some cattle in pasture occasionally. I know the boundaries of the thirty-acre tract. That is an independent tract, and has nothing to do with the land in controversy. After the widow of Thos. Monk died, my wife and John W. Monk leased the locus for five years to Dodge." After testifying to other matters, this witness continues: "Some seven acres of the land upon which the rock quarry is situated is fit for cultivation. You could have planted a crop where the rock quarry is now. That land was fit for cultivation. After the lease to Dodge was out, Jno. W. Monk, the coplaintiff, did not lease the seven acres where the rock quarry is to Southerland, or Rhodes, or to any one else. Rhodes leased from Jno. W. Monk the thirty-acre tract east of that. It was not leased to anybody after the Dodge lease was out, but Rhodes pastured his cattle there after he leased the other land from Jno. W. Monk. Nor did Jno. W. Monk do anything on the land after the Dodge lease was out. The Dodge lease was for five years from 1885." Mr. Rhodes, a witness for the plaintiff, testified: "In 1893 I rented some land from Mr. Monk. I don't say I rented this seven acres. I rented all the land that Jno. W. Monk owned between the New Bern road and the plank road, except five acres, which was reserved on the side next to the plank road, which does not touch the place where the rock quarry now is. I pastured my cattle upon the land where the rock quarry is in 1893, until the rock quarry was started in 1899, and the fence was torn down. I used the land for pasture where the rock quarry is, and that was all it was used for. The thirty-acre tract and the other land which I rented was used for cultivation. I rented the land that I rented from Mr. Monk for five years from 1893 and until it was sold. When I had my cattle on the land in controversy, Mr. W. A. Wright came to me one day, three or four or five years before they began to excavate rock at the rock quarry, and wanted to rent the seven acres in controversy, and I told him that I didn't wish to rent it; that I had more land than I wanted, and I hadn't already rented it; that I didn't want it. I told him I thought I already had it rented; that I had rented it from Monk. He then tried to sell it to me, and I told him that I didn't want to buy. This was in 1895, '96, or '97. It was before the rock quarry was started. I think it was three or four years before the rock quarry was started. The next thing I saw the rock quarry was going on there."

It is elementary learning that the adverse possession necessary to bar the entry of the true owner must be continuous. Ruffin J., in Malloy v. Bruden, 86 N.C. 251, says: "At all times there is a presumption in favor of the true owner, and he is deemed by law to have possession coextensive with his title, unless actually ousted by the personal occupation of another; and so, too, whenever that occupation by another ceases, the title again draws to it the possession, and the seisin of the owner is restored, and a subsequent entry by the same wrongdoer and under the same claim of title constitute a new disseisin from the date of which the statute takes a fresh start." In this case a break of two years was held sufficient to prevent the continuity of the possession. In Holdfast v. Shephard, 28 N.C. 361, a break "of four and a half or five months" was held sufficient. Here the plaintiffs' witnesses testify that there was a period of seven years during which Monk did nothing with the land. Rhodes, under a lease for an adjoining tract, pastured his cattle upon it. From 1877, the date of the first trespass, to 1890, was only 13 years. The Dodge lease expired in 1890. In 1893 Monk leased to Rhodes the 30-acre tract adjoining the locus in quo, and, so far as we can discover, asserts no claim or possession of the land after that time. Rhodes pastured his cattle on it, but says expressly, "I do not say I rented this seven acres." His entire testimony is consistent with that of Kenan, who says that Monk did not lease it to Rhodes. This is consistent with the fact shown by the plaintiffs that when Monk and his sister made partition of their father's land this seven acres was not included, although the deed of Mary E. Monk to her brother for the 30-acre adjoining tract and some other small parcels contains this language: "The foregoing described tracts, pieces or parcels of land being all the land owned by the late Thos. Monk which lies on the north of the old plank road." The plaintiff says that after the execution of this deed his sister had no possession or occupancy of the land. It is true that Monk says, after the Dodge lease was out, "I leased...