Williams v. North Carolina State Bd. of Ed., 205

• Citation: 266 N.C. 761,147 S.E.2d 381
• Decision Date: 30 March 1966
• Docket Number: No. 205,205
• Court: North Carolina Supreme Court
• Parties: Carl R. WILLIAMS, Whrens Casey Williams, and Minors, Samuel E. Williams, III, and Linda Williams, by their Next Friend, F. C. Paschall, v. NORTH CAROLINA STATE BOARD OF EDUCATION, North Carolina Wildlife ResourcesCommission and the State of North Carolina.

Page 381

147 S.E.2d 381

266 N.C. 761

Carl R. WILLIAMS, Whrens Casey Williams, and Minors, Samuel E. Williams, III, and Linda Williams, by their Next Friend, F. C. Paschall, v. NORTH CAROLINA STATE BOARD OF EDUCATION, North Carolina Wildlife ResourcesCommission and the State of North Carolina.

No. 205.

Supreme Court of North Carolina.

March 30, 1966.

Moore & Biberstein, Burgaw, Rountree & Clark, Wilmington, and Wells & Blossom, Wallace, for plaintiff respondents.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Parks H. Icenhour, Staff Atty. Wm. B. Ray, Raleigh, and Corbett & Fisler, Burgaw, for defendant petitioners.

BOBBITT, Justice.

Certiorari having been granted, the case is now before us in all respects as on appeal. Eastern Steel Products Corporation v. Chestnutt, 252 N.C. 269, 113 S.E.2d 587. Whether Certiorari was a prerequisite to an immediate appeal is now academic.

The 1957 Act (Session Laws of 1957, Chapter 514), now codified as G.S. § 41--10.1, provides: 'Trying title to land where State claims interest.--Whenever the State of North Carolina or any agency or department thereof asserts a claim of title to land which has not been taken by condemnation and any individual, firm or corporation likewise asserts a claim of title to the said land, such individual, firm or corporation may bring an action in the superior court of the county in which the land lies against the State or such agency or department thereof for the purpose of determining such adverse claims. Provided, however, that this section shall not apply to lands which have been condemned or taken for use as roads or for public buildings.'

The allegations of plaintiffs and defendants set forth in our preliminary statement clearly imply that defendants have not 'taken by condemnation' the tract of land described in the complaint. This being true, plaintiffs herein, by virtue of G.S. § 41--10.1, are entitled to institute an action against defendants under G.S. § 41--10. See Shingleton v. State, 260 N.C. 451, 133 S.E.2d 183.

Plaintiffs herein do not allege they are either in or out of possession. Nor do they allege that defendants have trespassed upon their land. They assert they own the lands described in the complaint in fee simple and that defendants are asserting an adverse claim thereto. These allegations are sufficient to meet the minimum requirements of G.S. § 41--10. Barbee v. Edwards, 238 N.C. 215, 221, 77 S.E.2d 646, and cases cited.

As indicated above, it appears from the allegations of both plaintiffs and defendants that defendants do not assert they have condemned the property. Nor do defendants assert ownership by virtue of their right of eminent domain or other attribute of sovereignty. Defendants' claims to ownership are based solely on rights and defenses available to private litigants in like circumstances.

We consider now whether the court erred in striking all or any of paragraphs 3, 4, 5, 6, 7 and 9 of defendants' further answer and defense.

In paragraphs 3 and 4, defendants alleged they had acquired title by adverse possession for more than seven years under color of title and by adverse possession for more than twenty years under known and visible boundaries. Whether these paragraphs should have been stricken involves the same question, namely, whether the State or its agencies may acquire title to real property by such adverse possession.

'The public may obtain title by adverse possession to that which it has occupied during the full statutory period. It would seem, however, that the acquisition of such title would have to be through a public or governmental entity rather than the unorganized public. Clearly, title by adverse possession may be acquired by the United States, or by a state, county, city, or other governmental entity. It is generally held that a municipal corporation is not deprived of the benefit of continuous adverse possession of land because of the public character of its corporate franchise, but that it may acquire title by adverse possession the same as an individual.' 3 Am.Jur.2d, Adverse Possession § 139; 2 C.J.S. Adverse Possession § 6; 5 Thompson on Real Property, 1957 Replacement, § 2555. Decisions supporting the quoted statement and cited texts include the following: Lincoln Parish School Board v. Ruston College, 162 So.2d 419 (La.App.), Certiorari denied, 246 La. 355, 164 So.2d 354, and cases cited; Attorney General v. Ellis, 198 Mass. 91, 84 N.E. 430, 15 L.R.A.,N.S., 1120, and cases cited; Eldridge v. City of Binghamton, 120 N.Y. 309, 24 N.E. 462; State v. Stockdale, 34 Wash.2d 857, 210 P.2d 686; State v. Vanderkoppel, 45 Wyo. 432, 19 P.2d 955; Stephenson v. Van Blokland, 60 Or. 247, 118 P. 1026; Foote v. City of Chicago, 368 Ill. 307, 13 N.E.2d 965.

As pertinent to the last sentence in the above quotation from American Jurisprudence 2d, the author cites, Inter alia, decision of this Court in Raleigh v. Durfey, 163 N.C. 154, 79 S.E. 434, in which the defendant-purchaser questioned the title of the plaintiff-seller (City of Raleigh) to 'the market house property * * *, situated in the center of Exchange Place.' It was admitted that the City of Raleigh had a perfect paper title to all of the property except a portion thereof covered by part of the market-house building. In affirming a judgment for plaintiff, which upheld its title and right to convey, this Court, in opinion by Brown, J., said: 'It is admitted that the plaintiff has been in undisputed actual adverse possession under known and visible lines and boundaries of the entire land and property for 60 years, occupying the same and collecting the rents. Upon these facts it would seem to be plain that plaintiff has acquired an absolute title to the property. One of the methods of acquiring title to land is by adverse possession. Mobley v. Griffin, 104 N.C. (112) 115, 10 S.E. 142. We know of no reason or authority by which a municipality is excluded from that rule and rendered incompetent to acquire title by that method.'

The quoted excerpt from the opinion of Brown, J., in Raleigh v. Durfey, supra, is quoted with approval by Walker, J., in Cross v. Seaboard Air Line R.R., 172 N.C. 119, 124, 90 S.E. 14, and by Clarkson, J., in In Matter of Assessment against Property of Southern R.R., 196 N.C. 756, 759, 147 S.E. 301. In the first cited case, it was held that a railroad company could acquire title to land by adverse possession. In the last cited case, it was held that a municipality could acquire title to a street located upon the right of way of a railroad company by adverse possession and use thereof for such purpose.

In Browning v. North Carolina State Highway Commission, 263 N.C. 130, 139 S.E.2d 227, Denny, C.J., after pointing out the differences between the facts in that case and those in Kaperonis v. North Carolina State Highway Commission, 260 N.C. 587, 133 S.E.2d 464, said: 'In our opinion, the evidence in the Kaperonis case was sufficient to have established a right of way by prescription, had the Commission not theretofore purchased the right of way from his predecessors in title.'

The following is an excerpt from the opinion of Avery, J., in State v. Fisher, 117 N.C. 733, 738, 23 S.E. 158: 'As a rule, the right to the easement in a public highway is acquired either by dedication, the exercise of the power of eminent domain, or user. * * * Where the public claims title to the easement by user, however, the burden rests upon the state, or its agencies, such as towns, * * * to show title by adverse possession.'

Our decisions, as well as Dicta, are in accord with the rule stated in the quotation from American Jurisprudence 2d. Paraphrasing the language of Brown, J., in Raleigh v. Durfey, supra, we know of no authority or reason by which the State of North Carolina or its agencies are excluded from the right to assert title by adverse possession when the circumstances would permit a private litigant to do so.

We have not overlooked plaintiffs' contention that defendants may not acquire title by adverse possession, with or without color of title, because G.S. § 1--38 and G.S. § 1--40 refer to a 'person' or to 'persons' and use the pronoun 'he.' We are of opinion and so hold that the General Assembly intended that these statutes should apply to any legal entity, including the State of North Carolina and its agencies, capable of adversely possessing land and of acquiring title thereto.

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