Saddle Club, Inc. v. Gibson

CAMPBELL, Judge.

This appeal presents the question as to whether plaintiff established its title to the 20-foot strip of land and the three trees growing thereon.

In a land title case plaintiff must prevail, if at all, upon the strength of its own title and not because of the weakness or lack of title in defendant. Plaintiff undertook to do this by introducing the deed to plaintiff in 1946 and the use of the property made thereafter from 1946 until 1962. This evidence established, as the judge found, that the plaintiff was actively in possession of the 20-foot strip of land and had exercised dominion and control over it by using it for the purposes for which it was ordinarily adaptable, namely, erecting signs, parking vehicles, placing oyster shells thereon for advertising purposes, landscaping it, mowing and maintaining it and claiming title thereto subject only to the right of the State Highway Commission, which right the State Highway Commission had never attempted to exercise.

The evidence introduced by the plaintiff was sufficient to sustain the findings of fact of the trial judge. In the absence of a jury trial, the findings of fact by the trial judge are conclusive if supported by any competent evidence; and a judgment supported by such findings will be affirmed. Industrial Center v. Liability Co., 271 N.C. 158, 155 S.E. 2d 501 (1967). The plaintiff by the deed in question showed color of title and the activities of the plaintiff on the land subsequent to the deed in 1946 up to 1962 showed possession of the premises in question for more than seven years. This was sufficient and we do not deem it necessary to again expound on how to try a land title. This is thoroughly treated in an opinion by Judge Morris of this Court in the case of “In the Matter of Callie Hooper King, et al v. Mary Alice King Lee, et al,” filed 16 September 1970 and reported in 9 N.C. App. 369.

While G.S. 1-45 prevents plaintiff or any other person from acquiring an exclusive right to the land, it does not prevent plaintiff from acquiring a right superior to that of all other persons save the State, and the stipulation that the land was within the right-of-way of the Highway Department indicates only that the State has a superior right, if it chooses to exercise it, to the land. The rights of the State do not preclude plaintiff from acquiring actual, lawful possession, and the evidence was sufficient to support a finding of fact to that effect.

Affirmed.

Judges Britt and Vaughn concur.