Walker v. Parker

• Decision Date: 19 May 1915
• Docket Number: 521.
• Citation: 85 S.E. 306,169 N.C. 150
• Parties: WALKER v. PARKER.
• Court: North Carolina Supreme Court

85 S.E. 306

169 N.C. 150

WALKER v. PARKER.

No. 521.

Supreme Court of North Carolina

May 19, 1915

Appeal from Superior Court, Wilkes County; Harding, Judge.

Proceedings to protest an entry of public lands by Ellen Walker against P. R. Parker. From a judgment for protestant, the enterer appeals. Reversed and new trial ordered.

Under Revisal 1905, §§ 1707, 1708, any person claiming interest in the land covered by an entry, must file his protest within the time specified.

Where a protest against a public land entry alleges that the land is not vacant and unappropriated by reason of an adverse possession, the burden is on protestant.

This is a proceeding to protest an entry. The protestant alleged in her protest that she was the owner of two tracts of land, one of 45 acres and the other of 50 acres, the 50-acre tract being, as she alleged, the land covered by the David Parker grant, and that, if the land described in the entry was within the boundaries of these two tracts of land, it was not vacant and unappropriated. The 50-acre tract is located between the 45-acre tract and the land described in the entry, and therefore the land in the entry could not be within the boundaries of the 45-acre tract, and the jury found that the David Parker grant did not cover the land in the entry. The protestant offered evidence of an adverse possession of the land for 30 years for the purpose of showing title out of the state.

The jury returned the following verdict:

"(1) Is the land embraced in P. R. Parker's entry as described on the map, or any part thereof, covered by the grant to David Parker from the state of North Carolina under whom protestant claims? A. No.

(2) Is the plaintiff, Ellen Walker, seised and possessed of said land, or any part thereof, by virtue of open notorious, continuous, and adverse possession under known and visible lines and boundaries for a period of 20 years? A. No.

(3) Has the plaintiff, Ellen Walker, or those under whom she claims, been in the adverse possession of the land referred to as the P. R. Parker entry in this case for 30 years such possession being ascertained and identified under known and visible lines or boundaries? A. Yes.

(4) Is the land described in the entry and survey of plaintiff's contention vacant and unappropriated? A. No."

The charge of his honor indicates that the second issue has not been properly transcribed, and that the question really presented in that issue was whether the protestant had been in adverse possession of the land for 21 years under color. His honor charged the jury that the burden was upon the enterer upon the third issue to satisfy the jury that the protestant had not been in the adverse possession of the land described in the entry for 30 years, and the enterer excepted. There was a judgment in favor of the protestant and the enterer appealed.

H. C. Caviness, of Wilkesboro, for appellant.

Hayes & Jones, of North Wilkesboro, and Finley & Hendren, of Wilkesboro, for appellee.

ALLEN J.

"All vacant and unappropriated lands belonging to the state," subject to certain exceptions which are not involved in this appeal, are the subject of entry (Revisal, 1693), and it has been held that:

"Lands that have been once granted by the state to individual citizens, that is, cut off from the undefined public domain and appropriated to private uses, do not become vacant, within the meaning of the statute, simply because the state may in some way again acquire them, and fail to put them to any special use." State v. Bevers, 86 N.C. 590.

The person who claims the right to make the entry is required to file with the entry taker a writing signed by him, setting forth where the land is situate, the nearest water courses and remarkable places that may be thereon, and the natural boundaries of any other person, if any, which divide the land entered from other lands (Revisal, 1707), and the entry taker is, among other things, required to cause a copy of the entry to be posted for 30 days at three public places in the township or townships in which the land covered by the entry is located, and at the courthouse door, and also to advertise the same for 30 days in a newspaper, if there is one in the county (Revisal, 1708). The purpose of this notice is to give information to the public, and any person who claims title or interest in the land covered by the entry has the right within the time provided for the publication of the notice and the advertisement, and not thereafter, to file his protest (Garrison v. Williams, 150 N.C. 677, 64 S.E. 783), which should contain a denial that the land is vacant and unappropriated land belonging to the state, and allegations as to his claim or interest therein.

The right to protest is not given to intermeddlers, but only to those who claim title to or interest in the land (Lumber Co. v. Clarke, 152 N.C. 546, 67 S.E. 1057), and the protestant is therefore required to assert his title or interest.

When the protest is filed, it is then the duty of the clerk of the superior court to issue notice to the claimant to appear at the next term of the superior court to show cause why his entry shall not be declared inoperative and void (Revisal, 1709), and the issue joined is then to be heard and passed upon by a jury.

The state has no interest in this issue because "it is immaterial to which one of * * * her citizens she grants a particular tract of land; from each she gets * * * the same revenue for it when granted." O'Kelly v. Clayton, 19 N.C. 248. And since the act of 1893, now section 1699 of the Revisal, a grant issuing for land previously granted can work no injury to the state or to any citizen, as it is expressly provided by that act that such grants are "void for all purposes," and "shall under no circumstances constitute any color of title whatsoever to any person whomsoever."

It has therefore been held that, as the enterer has...