Lachmann v. Baumann

BROCK, Chief Judge.

Plaintiff offered evidence which tended to establish, by two of the long approved methods, her title to the land in controversy. (1) She offered evidence tending to show open, notorious, continuous adverse possession under known and visible lines and boundaries for twenty years. (2) She offered evidence tending to connect plaintiff and defendants with a common source of title and to show in herself a better title from that source. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. See G.S. 1-36 for elimination of need to show title out of the State.

Plaintiff also offered evidence which tended to establish her title by the long approved method of showing open, notorious, continuous adverse possession under known and visible lines and boundaries and under color of title, for seven years. However, in finding of fact number 11, the trial judge did not find that her possession under this method was under known and visible boundaries. See G.S. 1-38 (a) ; Barringer v. Weathington, 11 N.C. App. 618, 182 S.E. 2d 239. Therefore, plaintiff’s evidence under this method of showing title availed her nothing.

Nevertheless, either finding of fact number 10 or finding of fact number 12 is sufficient to support the judgment. In finding number 10, the trial judge found as a fact “that plaintiff and her predecessors in title have been in the actual, notorious, adverse, continuous and peaceable possession under known and visible lines and boundaries for more than twenty years prior to the institution of this action of the land” in controversy. In finding of fact number 12, the trial judge found as a fact “that plaintiff and the defendants hold their respective tracts of land from a common source of title and that plaintiff has the superior and better title of all lands in controversy in this action.” In our opinion, there was adequate, competent evidence to support both of these findings of fact.

Defendants assign as error that the trial judge admitted into evidence the plat made from the survey of the lands ordered by the Court, and in permitting the witnesses to testify by reference to the plat. The procedure followed by plaintiff in the identification of the plat and the introduction of the plat into evidence were proper. We see no merit in defendants’ arguments about witnesses being allowed to testify by reference to the plat.

Defendants state in their brief that the main thrust of their appeal is their inability to obtain a verbatim transcript of the testimony of the witnesses. It appears from the record on appeal that the Court Reporter was unable to record the testimony in shorthand and that her tape recorder was not working properly. She states by affidavit that she is “unable to furinsh any portions of the testimony.” Based upon this affidavit, defendants made a motion to the trial judge for a new trial. The motion was denied with the following comment: “ . . . [T]he Court is of the opinion that the case on appeal in this case can be prepared and agreed upon or settled by the Court. . . ” Indeed, the case on appeal was agreed upon by counsel, without resort to the trial judge for settlement. We are not inclined to disturb that agreement.

The judgment appealed from is

Affirmed.

Judges Parker and Baley concur.