Gibson v. Dudley , 233 N.C. 255 ( 1951 )

63 S.E.2d 630 (1951) 233 N.C. 255

GIBSON et al.
v.
DUDLEY et al.

No. 740.

Supreme Court of North Carolina.

February 28, 1951.

Parker & Lucas and Elledge & Browder, all of Winston-Salem, for plaintiffs, appellants.

Womble, Carlyle, Martin & Sandridge, Winston-Salem, for defendants, appellees.

STACY, Chief Justice.

The question for decision is whether the evidence, taken in its most favorable light for the plaintiff, survives the demurrer and carries the case to the jury. The trial court answered in the negative, and we approve.

The vital question is the character of plaintiff's possession of the triangular strip of the driveway embraced in defendant's deed prior to 1948, whether permissive or adverse. The law presumes it was permissive. He does not say it was adverse.

The plaintiff purchased and went into possession of his lot in 1924. He thought his deed covered the whole of the driveway, including the locus in quo. "I thought all the time it was my property". Not until 1948, when the defendant purchased the adjoining lot and had it surveyed, did he learn otherwise. He then had a conversation with the defendant about his encroachment on the defendant's lot. "I asked Mr. Dudley what he was going to do about letting me continue to use the driveway. He told me, we suggested we'd have a joint driveway". The plaintiff then went to his lawyer and asked him "to fix up papers to make it a joint driveway permanently". Instead, a few days later the lawyer notified the defendant by letter that the plaintiff was claiming title to the whole of the driveway. The plaintiff says, "I did not ask Mr. Elledge to write a letter to Mr. Dudley; Mr. Elledge wrote the letter; I never saw the letter."

The plaintiff further testified that the triangular strip in question "is not covered by my deed. I thought all the time it was my property. * * * I am claiming the old established driveway that was there when I bought the property, * * * and I have continued to use it since then. I thought all the time it was mine. * * I am claiming by adverse possession by use by reason of my driveway. * * * I have used the property for a driveway and also to store my coal in the basement since I bought the property 24 years ago".

Note, the plaintiff says he is now claiming the small strip in question by adverse possession, but nowhere does he say his claim prior to 1948 was other than under his deed, which admittedly does not cover the Locus in quo, while the defendant's deed does. Certainly he was not claiming it as against the true owner when he first discovered the error and went to see the defendant and then his own lawyer about fixing up papers to make it a joint driveway. Prior to this time, "he did not intend to usurp a possession beyond the boundaries to which he had a good title". Bynum v. Carter, 26 N.C. 310. When he first went into possession he was claiming, and intended to claim, only that which he had purchased, and there was no occasion for any change in his purpose prior to the discovery that he was encroaching on defendant's lot. No hostile occupancy occurred up to this time as the plaintiff thought his deed covered the entire driveway. His claim then was not one of adverse possession but one of rightful ownership. If his possession were exclusive, open and notorious, as he now contends, no one regarded it as hostile or adverse, not even the plaintiff himself, for he was not conscious of using his neighbor's land. "I thought all the time it was mine". These conclusions are impelled by the plaintiff's own testimony.

The observations of Ruffin, C. J., in Green v. Harman, 15 N.C. 158, appear apropos: "If indeed, two persons own adjoining lands, and one runs a fence so near the line as to induce the jury to believe that any slight encroachments were inadvertently made, and that it was the design to run on the line, the possession constituted by the enclosure might be regarded as permissive, and could not be treated as adverse, even for the land within the fence, except as it furnished evidence of the line in a case of disputed boundary". No boundary dispute exists here, since admittedly the defendant's deed covers the locus in quo, and the plaintiff's deed does not.

Again in Vanderbilt v. Chapman, 175 N.C. 11, 94 S.E. 703, 704, Allen, J., says: "* * * every possession of land is presumed to be under the true title * * * And if the possession is by mistake or is equivocal in character, and not with the intent to claim against the true owner, it is not adverse". Accordant, King v. Wells, 94 N.C. 344; Boyden v. Achenbach, 79 N.C. 539; Id., 86 N.C. 397; Ray v. Lipscomb, 48 N.C. 185, 186. "It is the occupation with an intent to claim, against the true owner, which renders the entry and possession adverse". Parker v. Banks, 79 N.C. 480.

Bulge the plaintiff's testimony as we may, it hardly seems capable of being stretched to a claim of adverse possession prior to the letter of plaintiff's counsel in 1948. Even then the plaintiff is cast in a role he did not know he was taking. The law never presumes a wrong; quite the reverse; it does not ascribe one's act to covetousness when all the evidence points only to an inadvertence. Indeed, the plaintiff's daughter says, "We assumed it was ours". It would be strange if one who enters permissively upon the premises of another could camouflage his intention to claim adversely for twenty years, then turn upon the owner and say, "I now have the better title by reason of my possession, and I will disregard your indulgence and assert a right to all you have allowed me to occupy". Bryson v. Slagle, 44 N.C. 449. Fortunately, the law is not so written. Snowden v. Bell, 159 N.C. 497, 75 S.E. 721; Mebane v. Patrick, 46 N.C. 23; Ingraham v. Hough, 46 N.C. 39.

On appeal here, the plaintiff, appellant, not only has the laboring oar, but the tide is also against him. Cole v. Atlantic Coast Line R. R. Co., 211 N.C. 591, 191 S.E. 353. In the instant case he is faced with two contrary presumptions, the one that his possession was permissive and not adverse, the other that the judgment of the trial court is correct. The impression prevails that the record as presented fails to surmount these barriers. The following authorities also support the ruling below, some directly, others obliquely. Darr v. Carolina Aluminum Co., 215 N.C. 768, 3 S.E.2d 434; Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2; Dawson v. Abbott, 184 N.C. 192, 114 S.E. 15; State v. Norris, 174 N.C. 808, 93 S.E. 950; Waldo v. Wilson, 173 N.C. 689, 92 S.E. 692; Blue Ridge Land Co. v. Floyd, 171 N.C. 543, 88 S.E. 862; King v. Wells, 94 N.C. 344, 352; Gilchrist v. McLaughlin, 29 N.C. 310; Annotation 97 A.L.R. 26; 1 Am.Jur. 916, et seq.

The judgment of nonsuit will be upheld.

Affirmed.