McLean v. . Smith , 114 N.C. 357 ( 1894 )

According to the undisputed testimony the plaintiff and those through whom he claims had been in possession, under the junior title, of a small portion of the lappage (marked "X" on the map, 106 N.C. 173) for about forty years; at all events for more than seven years before the defendant's tenant in the year 1879, first entered upon and actually occupied a portion of it (marked "O" on the map) in the assertion of her claim under the older title. The only evidence offered to show any attempt by defendant to exercise dominion over the lappage before 1879 was that her agents or tenants entered at intervals and cut timber for rails and removed pine straw from it. Such occasional acts did not constitute an occupation that would mature title or arrest the running of the statute in favor of the plaintiff, if he, claiming under the junior title, had inclosed and was cultivating a portion of the lappage. McLean v. Smith, 106 N.C. 172;Ruffin v. Overby, 105 N.C. 78; Williams v. Wallace, 78 N.C. 354. The court below erred when upon such testimony the jury were left to determine whether the defendant for seven years occupied and used any portion of the lappage "for any purpose such land could be used for." There was no evidence that she erected a house or made an inclosure upon the interference prior to 1879, five years before suit was brought. The instruction would have been warranted by the testimony if it had been shown that the land in controversy was not susceptible of cultivation and had been used continuously for the statutory period for the only purpose for which it is available, but not when the exercise of dominion consisted in getting pine straw, cutting rails or firewood at intervals. McLean v. Smith,supra; Tredwell v. Riddick, 23 N.C. 56; Bynum v. Carter, 26 N.C. 310;Bartlett v. Simmons, 49 N.C. 295; Loftin v. Cobb, 46 N.C. 406, and Williams v. Wallace, supra. The witnesses testified (366) that she had not at any time boxed any of the trees in order to get turpentine. If this error was not sufficient it seems that the court refused to allow the plaintiff to show his intent in inclosing a portion of the lappage at "X," which it was certainly competent for him to do. While we held on the former appeal that the presumption generally arose that a person entered on any land within the limits of his deed in the assertion of a claim of title to outside boundaries of it, and that the presumption was strengthened by the fact that the plaintiff had inclosed the site of defendant's corner, and other circumstances mentioned, it was not intimated that the defendant would be precluded from showing circumstances competent and calculated to rebut the presumption, nor is there any reason why the plaintiff may not strengthen the presumption by showing that he did not enter on the lappage by mistake, but actually intended to assert his title thereto by such occupation.

The learned judge who tried the case was doubtless led into error, as suggested, by the fact that his attention was not directed to the opinion on the former appeal. The plaintiff is entitled to a

New trial.

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