Mizzell v. Ewell

219 S.E.2d 513 (1975) 27 N.C. App. 507

Queenie Duke MIZZELL et al.
v.
Dennis D. EWELL, single, et al.

No. 751SC500.

Court of Appeals of North Carolina.

November 19, 1975.

Cherry, Cherry, Flythe & Evans by Joseph J. Flythe, Ahoskie, for petitioners-appellants.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. T. Buie Costen, Raleigh, and Leroy, Wells, Shaw, Hornthal, Riley & Shearin, P.A., by Dewey W. Wells, Elizabeth City, for defendants-appellees.

ARNOLD, Judge.

Petitioners contend that the trial court committed reversible error by granting defendants' motion for directed verdict of dismissal at the close of petitioners' evidence. They argue that the evidence viewed in the light most favorable to their case would establish their claim of title by adverse possession. We cannot agree.

In order to establish title by adverse possession there must be actual possession with an intent to hold solely for the possessor to the exclusion of others. The claimant must exercise acts of dominion over the land in making the ordinary use and taking the ordinary profits of which the land is susceptible, with such acts being so repeated as to show that they are done in the character of owner, and not merely as an occasional trespasser. Lindsay v. Carswell, 240 N.C. 45, 81 S.E.2d 168 (1954); Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969). In addition, the possession must be within known and visible lines. G.S. 1-40.

"Every possession of land will not ripen into title. Each one of the following elements must be proved by a claimant in order for him to obtain title by adverse possession.

There must be an actual possession of the real property claimed; the possession must be hostile to the true owner; the claimant's possession must be exclusive; the possession must be open and notorious; the possession must be continuous and uninterrupted for the statutory period ; and the possession must be with an intent to claim title to the land occupied." Webster, Real Estate Law in North Carolina § 258, p. 319.

It is clear from petitioners' own evidence that they have failed to meet the burden of proof required to make good their claim of adverse possession under known and visible boundaries.

"A possession that ripens into title must be such as continually subjects some portion of the disputed land to the only use of which it is susceptible, . . .. The test is involved in the question whether the acts of ownership were such as to subject the claimant continually during the whole statutory period to an action in the nature of trespass in ejectment instead of one or several actions of trespass quare clausam fregit for damages." Mallett v. Huske, 262 N.C. 177, 181, 136 S.E.2d 553 (1964), quoting Shaffer v. Gaynor, 117 N.C. 15, 23 S.E. 154 (1895).

Petitioners' strongest evidence of continuous possession is Andrew Duke's "reputed possession" between 1915 and 1923. However, the record does not show that Andrew Duke was ever in actual possession and reputation evidence is not admissible to show ownership of land but merely goes to the issue of notoriety of possession. Brewer v. Brewer, 238 N.C. 607, 78 S.E.2d 719 (1953).

Petitioners' remaining assignments of error allege that the trial court erred by striking testimony favorable to the petitioners' case. Petitioners, in their brief, make no arguments whatsoever, regarding prejudicial harm caused by the trial judge's ruling. Petitioners were successful in getting in the excluded evidence through other testimony. We can find no possible harm caused by the exclusion.

Affirmed.

MORRIS and HEDRICK, JJ., concur.