Williams v. Buchanan

• Decision Date: 30 June 1841
• Citation: 1 Ired. 535,35 Am.Dec. 760,23 N.C. 535
• Court: North Carolina Supreme Court
• Parties: JOHN A. WILLIAMS v. JOSEPH BUCHANAN.

1 Ired. 535

23 N.C. 535

35 Am.Dec. 760

JOHN A. WILLIAMS

v.JOSEPH BUCHANAN.

Supreme Court of North Carolina.

June Term, 1841.

A grant of land, bounded in terms by a river or creek, not navigable, carries the land to the grantee usque ad filum aquæ, to the middle or thread of the stream.

Where two grants or deeds lap, and neither party has the actual possession of the lapped part, the law adjudges the possession of that part in him, who has the better title; but if either be actually in possession of of the lapped part, the law adjudges him to be in the exclusive possession thereof.

Possession of land is denoted by the exercise of acts of dominion over it, in making the ordinary use and taking the ordinary profits, of which it is susceptible in its present state--such acts to be so repeated as to shew that they are done in the character of owner, and not of an occasional trespasser.

In a stream not navigable, keeping up fish traps therein, erecting and repairing dams across it, and using it every year, during the entire fishing season, for the purpose of catching fish, constitute an unequivocal possession thereof.

The cases of Wilson v. Forbes, 2 Dev. 30; Ingram v. Threadgill, 3 Dev. 59; and Pugh v. Wheeler, 2 Dev. & Bat. 50, cited and approved.

This was an action of trespass quare clausum fregit, tried at Spring Term, 1841, of Chatham Superior Court, before his honor Judge PEARSON. The trespass alleged was, putting a fishtrap in Deep River, & joining the dam to a small island. It was admitted that Deep river was not a navigable stream. The plaintiff read a grant to one Stokes, which, it was admitted, covered the locus in quo, and that the fish trap and the island to which the dam was joined, consisting of a ledge of rock and a collection of trees and shrubs, were situate on the south side of a line, pursuing the river--the traps being across a sluice of water, running between the south bank and the island; and it was also admitted that, about the year 1816, the land on the north side of the river, and the land on the south side of the river, opposite the locus in quo, and the land contained in the grant to Stokes, by a regular chain of title, became the property of one Ramsay; that Ramsay died about 1820, when, under regular proceedings had in the County Court, one Alston sold a part of the land to William Boylan, including the land on the north side of the river and a part of the land to Mrs. Ramsay, as described in the deed from said Alston to Mrs. Ramsay, of a subsequent date. Boylan sold to the plaintiff, and conveyed by the same boundaries as in the deed from Alston to him. Mrs. Ramsay, in 1829, conveyed to the defendant by a deed having the same boundaries as the deed from Alston to her. The plaintiff proved that in 1839, a short time before the writ issued, the defendant put in a fish-trap and run a dam partly across the sluice to the island, which was the trespass complained of. The defendant proved that, soon after Mrs. Ramsay bought the land, she rented it to one Wicker for seven years, together with the privilege of fishing in the river--that Wicker took possession of the plantation, and in the spring of 1823, repaired an old trap at the locus in quo, put in a new trap near the old one, connected the two by a dam, and run a dam to the south bank, and one to the island, so as to reach entirely across the sluice, and continued to use these two traps in fishing seasons regularly up to the expiration of his lease in 1829. The defendant also proved that as soon as Wicker left the premises, he took possession, and continued to use the traps in fishing season every year--that the new trap, which he put in, was in Wicker's dam near the south bank, and that the new dam, made by him from one of the old traps to the island, went in a straight direction, and struck the island some fifteen or twenty feet lower down.--The plaintiff insisted that the defendant's title did not include the locus in quo, and that he might recover for the alleged trespass. The defendant insisted, 1st, that his title did include the locus in quo, and that, supposing his title to be junior, it had become the better title by seven years adverse possession; 2d, that if his title did not include the locus in quo, the plaintiff's action for his original entry was barred by the statute of limitations, and that, as he had all along held possession of the two old traps, the plaintiff had not such a possession as would enable him to recover, for putting in the new traps and making the new dam, which he contended amounted only to repairing the old one, was a mere continuation of his former possession; 3dly, that the plaintiff's title did not include the locus in quo.

The court was of opinion and charged the jury, that, from the evidence, the deed from Alston to Boylan, under which the plaintiff claimed, included the locus in quo; that from the evidence, the deed from Alston to Mrs. Ramsay, under which the defendant claimed, also included the locus in quo...