Virginia-Carolina Power Co. v. Taylor

Decision Date21 September 1927
Docket Number86,87.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Northampton County; Grady, Judge.

Ejectment by the Virginia-Carolina Power Company against Job Taylor. Verdict for plaintiff was set aside, and both parties appeal. Affirmed.

In ejectment, the burden is on plaintiff to establish title to the land in dispute.

Civil action in ejectment to recover possession of a tract of land located in the bed of Roanoke river, a nonnavigable stream.

Upon issues raised by denial of plaintiff's title and claim of ownership by adverse possession on the part of the defendant the jury returned the following verdict:

"(1) Is the plaintiff the owner of and entitled to the possession of the tract of land described in the complaint being the bed of Roanoke river south of the thread thereof as indicated on the plot? A. No.

(2) Has the plaintiff, or those under whom it claims, been possessed of said land within 20 years before the commencement of this action? A. No."

Plaintiff alleges error in the following instruction relative to the burden of proof:

"And so, gentlemen, if you find in this case, from the evidence offered, that the defendant, Job Taylor, and those under whom he claims title, have been in the possession of these particular lands, the lands in controversy which are shown within the red lines on that map, for 20 years prior to 1921 as alleged in his answer, holding the same as their own, and that such possession was characterized by the qualities to which I have just called your attention, then, gentlemen, I charge you the said lands would belong to the defendant and it would be your duty to answer both of these issues 'No.' On the other hand, if the plaintiff has satisfied you by the greater weight of the evidence that the chain of title offered in evidence covers these lands in controversy, and that such chain is connected back to the grant of 1790, and it further satisfies you by the greater weight of the evidence that it and those from whom it acquired title have been in the possession of the said lands at any time within 20 years prior to 1921, or since 1901, such possession coming within the definition that I have given you, it would be your duty to answer both of these issues 'Yes'; otherwise, answer them 'No."'

Upon the coming in of the verdict, defendant moved for judgment which was refused. Defendant excepted. His honor then set aside the verdict, not as a matter of discretion, but for errors committed in the trial of the cause, mentioning especially his ruling in holding void, or merely as color of title, a grant issued to William Eaton in 1790, under which the plaintiff claims. Defendant again excepted and appealed. The plaintiff also appeals, bringing up other exceptions in support of the action of the court in setting aside the verdict of the jury as a matter of law.

George C. Green, of Weldon, for plaintiff.

Travis & Travis, of Halifax, Burgwyn & Norfleet, of Jackson, and Chas. R. Daniel, of Weldon, for defendant.


The two appeals present the same questions for review; hence, they will be considered together. The case has been tried three times in the superior court, and this is the third appeal here. See former opinions, as reported in 191 N.C. 329, 131 S.E. 656, and 188 N.C. 351, 124 S.E. 634, for fuller statement of the facts. Its only rival among the more recent decisions seems to be the quadruply-tried ejectment suit of Taylor v. Meadows, 186 N.C. 353, 119 S.E. 483; 182 N.C. 266, 108 S.E. 755; 175 N.C. 373, 95 S.E. 662; 169 N.C. 124, 85 S.E. 1.

We would not permit the case to go back for another hearing if the verdict could be reinstated without doing violence to settled principles of law. Burris v. Litaker, 181 N.C. 376, 107 S.E. 129. Verdicts and judgments are not to be set aside for harmless error, or for mere error and no more. State v. Beam, 184 N.C. 730, 115 S.E. 176. Appellate courts will not encourage litigation by reversing judgments for slight error, or stated objections, which could not have prejudiced the rights of the complaining party in any material way. In re Ross, 182 N.C. 477, 109 S.E. 365. New trials are awarded for erroneous rulings only when such rulings are material or prejudicial in a legal sense. In re Edens, 182 N.C. 398, 109 S.E. 269.

Notwithstanding these established rules of procedure, which we are required to observe, still we are unable to reverse the judgment and reinstate the verdict in the face of the above exception to the charge on the burden of proof. It is uniformly held that the rule as to the burden of proof is important in the trial of causes, and that it constitutes a substantial right of the party upon whose adversary the burden rests. Hosiery Co v. Express Co., 184 N.C. 480, 114 S.E. 823. A similar charge was held for error in Land Co. v. Floyd, 171 N.C. 543, 88 S.E. 862. There it was said that when the plaintiff in ejectment shows title to the premises, and the...

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15 cases
  • In re Efird's Will
    • United States
    • United States State Supreme Court of North Carolina
    • 31 Enero 1928
    ...182 N.C. 477, 109 S.E. 365; Dickerson v. R. R., 190 N.C. 292, 129 S.E. 810; Harvey v. Tull, 192 N.C. 826, 135 S.E. 534; Power Co. v. Taylor, 194 N.C. 231, 139 S.E. 381. the courts, under similar situations, have held "and" to mean "or," but the error is technical and harmless on the present......
  • Vance v. Pritchard
    • United States
    • United States State Supreme Court of North Carolina
    • 25 Mayo 1938
    ...... evidence here did not warrant the application of the. principle set forth in Virginia-Carolina Power Co. v. Taylor, 194 N.C. 231, 139 S.E. 381, and cases there. cited, where instructions to ......
  • Johnson v. Fry
    • United States
    • United States State Supreme Court of North Carolina
    • 23 Junio 1928 sufficient to establish title in this jurisdiction. C. S. §§ 428 and 430; Power Co. v. Taylor, 191 N.C. 329, 131 S.E. 646; s. c., 194 N.C. 231 Succinctly, Evander McIver, without deed, had been in possession of the land in controversy some 6 years, and went into the possession under Ben ......
  • Thomas v. Hipp
    • United States
    • United States State Supreme Court of North Carolina
    • 3 Noviembre 1943
    ...... to a claim for title by adverse possession. Mann v. Taylor, 49 N.C. 272, 69 Am.Dec. 750; Deaver v. [223 N.C. 519] Jones, 114 N.C. 649, 19 S.E. 637;. Holmes ... burden on that issue. Virginia-Carolina Power Co. v. Taylor, 194 N.C. 231, 139 S.E. 381. . .          For the. reasons ......
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