Simmons v. Defiance Box Co.
| Decision Date | 19 October 1910 |
| Citation | 69 S.E. 146,153 N.C. 257 |
| Parties | SIMMONS v. DEFIANCE BOX CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Craven County; Peebles, Judge.
Action by Nathan Simmons against the Defiance Box Company. From a judgment for plaintiff, defendant appeals. Affirmed.
One in exclusive possession of land under color of title can maintain trespass quare clausum fregit against a mere wrongdoer, even before his title matures.
Civil action to recover damages for wrongfully cutting timber on lands of plaintiff. At the close of plaintiff's testimony, and of the entire testimony, there was a motion by the defendant to nonsuit plaintiff under the statute, which was overruled, and defendant excepted. The court charged the jury, and on issues submitted the following verdict was rendered:
Simmons Ward & Allen and H. L. Gibbs, for appellant.
W. D. McIver and R. A. Nunn, for appellee.
The objection urged for error to the validity of this trial was to the refusal of the court below to nonsuit the plaintiff, and this chiefly on the ground that plaintiff had failed to offer evidence sufficient to establish title to the locus in quo; but we are of opinion that the objection cannot be sustained. The plaintiff introduced a grant from the state to one Francis Hill, bearing date July 25, 1716, and proved that this grant covered the land in controversy and all the land embraced and described in plaintiff's deed. Plaintiff further introduced deeds covering the land in controversy, and as set forth in the complaint, one from Leander Gilbert to Miles Jones, bearing date August 1, 1903, and the second from Miles Jones to plaintiff, bearing date December 27, 1897, and offered evidence tending to show that plaintiff and those under whom he claimed had been in the possession of a portion of this land, asserting ownership of the entire tract, under these deeds, for seven consecutive years prior to the institution of this suit and prior to the trespass complained of; the actual occupation having been of about 20 acres of cleared land and seemingly a tenement house within the boundaries of plaintiff's deed, as some of the witnesses speak of the claimants having lived on the land. Plaintiff further proved that about 1906 defendant company had entered upon the land and cut and carried away the timber from about 87 1/2 acres of the land, and offered evidence to prove the amount of damages sustained by reason of the alleged trespass.
Defendant introduced in evidence a grant to John Gray Blount for about 7,000 acres of land, purporting to be in Carteret county bearing date in 1795, and a line of mesne conveyances from the heirs of John Gray Blount to defendant company, and proved that the descriptive lines of these deeds covered the 87 1/2 acres of land where the cutting was done, and that there had never been any actual occupation on this portion of the land by plaintiff or those under whom he claimed. There was no evidence of any entry or possession of the defendant or any of its grantors upon the 87 1/2 acres prior to the time of the cutting complained of. Nor do we find any available testimony of such entry or possession within the boundaries of the John Gray Blount grant prior to that time, certainly none prior to 1904, "when L. M. Baltes, superintendent of defendant company called as a witness for plaintiff, testified on cross-examination that the first time he went on the company's land was in 1904." Upon this state of facts, we think that the trial judge properly refused to nonsuit plaintiff, and correctly charged the jury as he did, in substance, on the question of title, "that if the jury were satisfied by the greater weight of the evidence that plaintiff, Nathan Simmons, and those under whom he claimed, were in possession of the land, asserting ownership under these deeds for seven consecutive years prior to defendant's entry, such occupation would mature title to the land contained in said deeds;...
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