Memory v. Wells ( 1955 )

87 S.E.2d 497 (1955) 242 N.C. 277

T. S. MEMORY
v.
W. G. WELLS and wife, Victoria Marran Wells.

No. 603.

Supreme Court of North Carolina.

May 25, 1955.

Isaac C. Wright, R. I. Mintz, Wilmington, for defendants-appellants.

Ray H. Walton, Southport, for plaintiff-appellee.

HIGGINS, Justice.

The plaintiff alleges he is the owner and entitled to the possession of a specifically described lot in the Town of Southport, and that the defendants have trespassed on a portion of that lot by erecting an archway and fence thereon. The answer denies the plaintiff's ownership and asserts the defendants are owners of that portion of the lot in dispute by reason of title acquired by adverse possession. By stipulation the disputed area is designated by the letters A-B-C-D-A, on the surveyor's map. The stipulations do little more than pinpoint the main issue raised by the pleadings—the defendants' title by adverse possession.

The issue before the jury was: Did the defendants carry the burden of showing by the greater weight of the evidence that they and their predecessors in title had been in the open, notorious, exclusive and hostile possession of the disputed driveway under known and visible boundaries for 20 years?

At the outset the defendants are confronted with the presumption that possession is in him who has the true title. Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630; Vanderbilt v. Chapman, 175 N.C. 11, 94 S.E. 703. The presumption, of course, is one of fact and may be rebutted. The pleadings and the stipulations, construed together, place the record title in the plaintiff, and his right to the disputed area can be defeated only by a finding defendants have acquired title by adverse possession. According to defendants' evidence, the hostile flag was raised over the disputed driveway by the construction of the fence which blocked the plaintiff and his predecessors in title from using it. Plaintiff's evidence fixes 1946 as the date the fence was erected. Defendants' witnesses fix a much earlier date, as much as 40 years ago, though some of them say the former owners of both lots used the driveway. The evidence of adverse possession was conflicting. The burden of the issue was upon the defendants. The jury's verdict says they failed to carry that burden.

Unless reversible error appears in the court's ruling on the admissibility of evidence on the issue of adverse possession, or in the charge on that issue, the judgment must be affirmed. Twenty assignments of error based on 44 exceptions appear in the record. The exceptions were taken by counsel who were careful to see the defendants' rights were protected. All have been examined. Only a few require discussion. Mrs. Wells, one of the defendants, would have testified, if permitted, that she, her mother and grandmother had been in the open, notorious and adverse possession of the land in dispute for more than 20 years. The evidence offered is a conclusion which the jury may draw from competent evidence, but the witness is not permitted to do so. A witness may tell what use has been made—what acts of ownership have been exercised over the property. Then it is for the jury to say under proper instructions whether that constitutes open, notorious and adverse possession. The evidence was properly excluded in the form offered. Mrs. Wells offered to testify also as to statements made to her by her predecessors in title in respect to their acts of dominion and ownership over the locus in quo. They were properly excluded as being both self-serving and hearsay.

"For the purpose of attacking the contentions of the defendant as to the beginning clause of that deed of John E. Price set out in the answer and for that purpose only," the plaintiff offered a deed dated March 6, 1880. The defendants objected to the limited purpose for which the deed was offered. The objection is without merit. A deed is frequently offered for the purpose of attacking it. This is true especially in actions to remove cloud upon title. It would be difficult to make out such a case otherwise. In this case the deed would have been harmless if offered generally. The only question before the jury was the defendants' adverse possession for 20 years. The stipulation eliminated all other issues.

The defendants objected to the introduction in evidence of the map made by Mr. Davis, surveyor appointed by the court under G.S. § 38-4. Mr. Davis testified he is a licensed civil engineer and surveyor; that he made a survey and map of the lands belonging to the parties. He conferred with counsel for both parties and surveyed their respective contentions and designated them on his map. The map was properly received in evidence over objection. Ordinarily, a map or photograph is admissible only for the limited purpose of enabling witnesses to explain and illustrate their testimony. State v. Norris, 242 N.C. 47, 86 S.E.2d 916. In the case of Poole v. Gentry, 229 N.C. 266, 49 S.E.2d 464, this Court admitted a map of lands in dispute for the limited purpose of enabling the witnesses to explain their testimony. In that case, however, the map was made by the surveyor employed by one of the parties. In this case the map was made by a court-appointed civil engineer acting under court order and for both parties. The map was admissible not only for the purpose of illustrating the testimony, but also as evidence of the contentions of the parties.

The exceptions of the defendants to the testimony of the court surveyor with reference to the beginning points of his survey, how he located them, and the course and distance of the lines shown on the map cannot be sustained.

The court properly overruled the defendants' motion for judgment of nonsuit. The pleadings and stipulations placed upon them the burden of defeating plaintiff's claim by proving title in themselves by adverse possession for the statutory period. It is for the jury and not for the court to say whether the defendants have carried the burden. Bryan v. Spivey, 109 N.C. 57, 13 S.E. 766; Virginia-Carolina Power Co. v. Taylor, 194 N.C. 231, 139 S.E. 381; Bryant v. Murray, 239 N.C. 18, 79 S.E.2d 243. The case at bar is strikingly similar to the case of Gibson v. Dudley, supra, with the parties reversed. In the Gibson case the plaintiff claimed the driveway by 20 years adverse possession and the defendant claimed by reason of superior paper title. The claim of adverse possession failed in the Gibson case. It fails here.

The numerous exceptions taken during the progress of the trial, including request for special instructions, have been examined. The charge, as given, presents the issue fully and fairly and is in substantial accord with established legal principles. Sufficient reason to disturb the verdict does not appear.

No error.