Wiggins v. Taylor

228 S.E.2d 476 (1976)

31 N.C. App. 79

Ethel M. WIGGINS and Ruby M. Cole v. Harry TAYLOR.

No. 763SC332.

Court of Appeals of North Carolina.

October 6, 1976.

*477 Lee, Hancock & Lasitter by C. E. Hancock, Jr., New Bern, for plaintiffs.

Beaman, Kellum, Mills & Kafer by James C. Mills, New Bern, for defendant.

BROCK, Chief Judge.

The main point of defendant's appeal is his contention that plaintiffs' evidence is not sufficient to support a finding that plaintiffs held the land in question under known and visible boundaries continuously for more than twenty years.

Plaintiffs' evidence shows that the land in question is bounded on two sides by Cahooque Creek and on a third side by Spring Branch. Clearly these three boundaries are known and visible. The fourth boundary begins at a concrete marker near the head of Spring Branch and runs along a line of marked trees to a clearly witnessed corner in Cahooque Creek. According to plaintiffs' witness, who was admitted to be an expert surveyor, the marks at point four and point five and along the line between are thirty-five to fifty years old. One of defendant's witnesses testified that there was an old marked line between points four and five. Another of defendant's witnesses, a former adjoining landowner, said he *478 had a map dated 1917 that showed a concrete marker at point four, marked witness trees at point five, and a marked line of trees in between. This evidence is clearly sufficient to support a finding of a known and visible boundary of long standing from point four to point five, the only boundary not evidenced by water.

The remaining question raised by defendant is whether the evidence supports a finding that plaintiffs have been in continuous possession of the Haity land for more than twenty years.

The evidence is uncontradicted that plaintiffs' predecessor (their father through whom they claim by will) regularly cut timber and wood from the Haity land, raked straw for his stables, and hunted on the Haity land from 1910 until his death in 1938. The evidence is likewise uncontradicted that from 1938 until the alleged trespass by defendant, the plaintiffs periodically cut timber and wood from the Haity land, listed the Haity land, and paid the taxes thereon through the year 1974 the year of the alleged trespass. The record is devoid of evidence of a claim of title or estate in the Haity land by anyone other than plaintiffs and their predecessor except for defendant's listing the land for taxes in 1974. The evidence supports the finding that the land was not cultivated but was held for the production of wood and timber.

It would appear that the possession of plaintiffs' predecessor from 1910 to 1938 is sufficient to support plaintiffs' claim to title. "The possession need not have been during the period next preceding the commencement of the suit; but, if the title ripened by adverse possession at any time prior thereto; it will be sufficient for a recovery, unless subsequent to its vesting it had in some way been divested." Alexander v. Cedar Works, 177 N.C. 137, 98 S.E. 312 (1919). There is no evidence of a divesting of title since the death of plaintiffs' predecessor in 1938. Be that as it may, in our opinion the evidence supports a finding that plaintiffs have used, occupied, and claimed title to the Haity land in their own right from 1938 to 1974 sufficiently to establish title in them. Actual possession with the intent to hold solely for the possessor to the exclusion of others "is denoted by the exercise of acts of dominion over the land, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state; such acts to be so repeated as to show that they are done in the character of owner, in opposition to right or claim of any other person, and not merely as an occasional trespasser." Locklear v. Savage, 159 N.C. 236, 74 S.E. 347 (1912). "The possession need not be unceasing, but the evidence should be such as to warrant the inference that the actual use and occupation have extended over the required period." Alexander v. Cedar Works, supra.

We have reviewed defendant's assignment of error to the admission into evidence of an aerial photograph and a map depicting the land in controversy and find it to be without merit. Likewise, defendant's argument that the court erred in finding that defendant had no interest in the land is untenable.

In our opinion the evidence supports the findings of fact, the findings of fact support the conclusions of law, and the conclusions of law support the judgment.

Affirmed.

VAUGHN and MARTIN, JJ., concur.