State v. Brooks

• Decision Date: 12 March 1969
• Docket Number: No. 9,9
• Citation: 166 S.E.2d 70,275 N.C. 175
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Joe C. BROOKS, Sr., and wife, Anne Brooks; Thelma B. McEachern, single; JimBrooks and wife, Alene W. Brooks; Frances B. Furlong, Single; Mary Brooks, single; Lula Brooks, single.

Page 70

166 S.E.2d 70

275 N.C. 175

STATE of North Carolina v. Joe C. BROOKS, Sr., and wife, Anne Brooks; Thelma B McEachern, single; JimBrooks and wife, Alene W Brooks; Frances B. Furlong, Single; Mary Brooks, single; Lula Brooks, single.

No. 9.

Supreme Court of North Carolina.

March 12, 1969.

Herring, Walton, Parker & Powell, by Ray H. Walton, and E. J. Prevatte, Southport, for defendant appellees.

R. HUNT PARKER, Chief Justice.

This Court being of the opinion that the subject matter of the appeal, the acquiring of title to marshlands within the State by alleged adverse possession for thirty years, has significant public interest as set forth below, issued a writ of Certiorari to the Court of Appeals.

This is said in 46 N.C.L.Rev. 779:

'The vast estuarine areas of North Carolina--'those coastal complexes where fresh water from the land meets the salt water of the sea with a daily tidal flux'--are exceeded in total area only by those of Alaska and Louisiana. Estuarine areas include bays, sounds, harbors, lagoons, tidal or salt marshes, coasts, and inshore waters in which the salt waters of the ocean meet and are diluted by the fresh waters of the inland rivers. In North Carolina, this encompasses extensive coastal sounds, salt marshes, and broad river mouths exceeding 2,200,000 acres. These areas are one of North Carolina's most valuable resources.'

The theory on which the case was tried in the Superior Court must be the theory of the case on appeal. 1 Strong, N.C. Index 2d, Appeal and Error, § 4. As correctly stated in the decision of the Court of Appeals, the case was tried in the Superior Court on the theory of thirty years adverse possession under known and visible lines and boundaries and not under the theory of adverse possession for twenty-one years under color of title.

Defendants in their joint answer, after denying title in plaintiff, aver in their further answer and defense merely 'that they are the owners of the lands described in the complaint,' and do not mention adverse possession under color of title of the Locus in quo nor was it mentioned in the evidence or charge of the court.

Plaintiff assigns as error that the evidence of defendants does not suffice to show adverse possession for thirty years within the purview of G.S. § 1--35(1).

The evidence as summarized in the decision of the Court of Appeals does not mention two stipulations entered into by and between the parties at the trial. These two stipulations are: '* * * (T)his map (Plaintiff's Exhibit 1) which I will offer in evidence is the map duly recorded in this County of the property claimed by the Defendants and the Plaintiff'; (2) '* * * (T)he defendants will stipulate they do not contend that they own the bottoms of navigable waters located on the subject property. * * *' 'THE COURT: It is stipulated that Still Creek, Simmons Creek, the Eastern Channel, and the Cut Off Creek as shown in Plaintiff's Exhibit No. One are navigable waters.'

The Court of Appeals in its decision stated as evidence of adverse possession a summary of the testimony of Joe C. Brooks, Sr., as follows: 'That a portion of the property was leased to International Paper Company for the purpose of building a dock extending into the waterway for the unloading of pulpwood from about 1937 to 1956; * * * that he had fished the creeks and had seen others fishing in them until the dredge came in to clean out the waterway and dumped mud in the upper part and had seen people oystering in there in boats; * * * that he put chicken crates and myrtle bushes in the creeks 'up on the sides of the creek' and next to the grass in 1966, and erected signs indicating oyster gardens and shellfish areas; that the signs were put at the four corners of the property.' If Joe C. Brooks, Sr., as he testified, 'put chicken crates and myrtle bushes in the creeks 'up on the sides of the creek' and next to the grass in 1966, and erected signs indicating oyster gardens and shellfish areas; that the signs were put at the four corners of the property,' and even if these objects were not placed in navigable waters, this evidence still does not show adverse possession of the property for anything like thirty years.

The Court of Appeals is its decision stated as evidence of adverse possession its following summary of the testimony of James F. Brooks: '(T)hat his father and uncle conducted a general mercantile and naval stores business on the property; that their dock extended out from the mainland into Still Creek; that they bought and sold clams and had schooners coming in and loading and unloading at Tubbs Inlet and the mainland; that the dock reached into Still Creek about half way of what is now the inland waterway; that the dock was there when he first remembered it when he was about 15 years of age * * *.' This is no evidence of adverse possession by defendants of this property which was in navigable waters in the light of the second stipulation quoted above, for the simple reason that its possession by defendants was not hostile and held under a claim of exclusive right thereto.

The Court of Appeals in its opinion stated this: 'Mr. Robert J. Sommerset testified that he is 62 years of age; that George Brooks and J. W. Brooks had a warehouse and dock extending into Still Creek used for cargo boats bringing in fertilizer and taking out rosin and turpentine * * *; that the Brooks family had a fish stand on the eastern channel on the beach side adjoining the marsh and on the other side a fishing stand, and one just below the mouth of Simmons Creek; that these fishing points were operated from the time he was about 12 years old until the inland waterway was cut and the places filled in to the point they were no longer used; that his father operated one of the points and he helped him; that when the fish were divided one share was laid out for Mr. Brooks * * *.'

The requirement that possession must be hostile in order to ripen title by adverse possession does not import ill will or animosity but only that the one in possession of the lands claims the exclusive right thereto. Dulin v. Faires, 266 N.C. 257, 145 S.E.2d 873; Brewer v. Brewer, 238 N.C. 607, 78 S.E.2d 719, 40 A.L.R.2d 763; 1 Strong, N.C. Index 2d Adverse Possession, § 2. It seems clear from the testimony that we have quoted above from the decision of the Court of Appeals that the testimony of Joe C. Brooks, Sr., James F. Brooks, and Robert J. Sommerset relates to acts of possession by defendants in navigable waters in the swampland claimed by them; or if any part of the premises in the possession of defendants was not in navigable waters, it is impossible to determine from the record before us what part of it was in nonnavigable waters. It is well settled law that the party asserting title by adverse possession must carry the burden of proof on that issue. Thomas v. Hipp, 223 N.C. 515, 27 S.E.2d 528; Barrett v. Williams, 217 N.C. 175, 7 S.E.2d 383; Virginia-Carolina Power Co. v. Taylor, 194 N.C. 231, 139 S.E. 381. Defendants stipulated that they do not contend that they own the bottoms of the navigable waters located on the subject property and they then further stipulate that Still Creek, Simmons Creek, the Eastern Channel, and the Cut Off Creek as shown in plaintiff's Exhibit No. 1 are navigable waters. Certainly, in the light of those stipulations, any acts of possession as narrated above by the defendants lack the essential element that their possession was hostile, which is an essential element to ripen title by adverse possession.

The decision of the Court of Appeals summarizes the testimony of Joe C. Brooks, Sr., a part of which is as follows: '* * * (T)hat he knows the lines are on the ground as shown by the map agreed to; that the property is bounded on the east by D. S. Frink or the D. S. Frink estate, on the south by Ocean Isle Beach, on the west by M. C. or Manley Gore.' From an examination of the testimony in the record, it appears that the map referred to was plaintiff's Exhibit No. 1. The record shows that this map was made 14 April 1964. There is no evidence in the record as to how long the lines had been on the ground as shown by this map. There is no evidence in the record that iron stakes or any kind of stake or monument or marker was placed at the boundaries of lands claimed by defendants and had been there for thirty years.

The Court of Appeals seemed to think that the Frink line on the east and the Gore line on the west of the property as stated by defendants Joe C. Brooks, Sr., and James Brooks had been established by the evidence. There is no evidence where those lines were on the ground during the claimed thirty years of adverse possession. If the defendants had desired to claim adverse possession under color of title, which they do not here, the proper way to prove those lines would have been to put in evidence the Gore and Frink deeds, and those of their predecessors in title, and establish those lines on the ground for the thirty-year period. This was not done. It is well established that those having the burden of proof, as defendants do on the first issue here, must locate the land they claim title to by fitting the description contained in the paper-writing offered as evidence of title to the land's surface. G.S. § 8--39; Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673. Surely, the map, plaintiff's Exhibit No. 1, under the circumstances here lends no strength to defendants' case.

V. W. Herlevich, a witness for defendants was found by the trial court to be an expert in the field of land surveying. One of the counsel for defendants read to Mr. Herlevich a description in a deed from J. F. Sommerset and wife to George E. Brooks dated 5 September 1907 and properly recorded, and asked him if he knew whether or not the property shown on plaintiff's Exhibit No. 1 is included within that description just read to him. Mr. Herlevich answered: ...