Turnipseed v. Busby ( 1821 )

Mr. Justice Gantt

delivered the opinion of the court.

The opinion already delivered in the case of Turnipseed and Hawkins, is expressive of the Opinion of the court also in this /case, so far as respects the evidence which was permitted to go to the jury.

As regards possession, the occupancy of a part of the land by Stephen Smith, included in his grant, and not constituting any part of the land claimed by the plaintiff, is not such a possession as will divest the right of the legal owner. The owner of land is only injured when a trespass is actually committed thereon. Stephen Smith's possession therefore of a part of his own land would never, by any just construction of the statute of limitations, give him a title to another’s land over which he had never exercised any act of ownership. As regards his possession of a part of the land included in Currie's grant, the evidence in relation to it, is not, in my opinion, sufficient to shew that a right could thereby have been acquired under any construction that could properly be given to the statute.

Gregg, for, the motion, ■ De Saussure, contra.

The possession first acquired was neutralized by the conveyance to Andrew, and there does not appear to have been any possession afterwards which could affect the claim of the plaintiff to the land which he has purchased.

It is the opinion of the court that the motion made in this case should fail, and that the verdict remain. ■

Justices Colcock, Johnson, Huger and Richardson, concurred.