Everett v. Sanderson

Annotate this Case

78 S.E.2d 408 (1953)

238 N.C. 564

EVERETT et al. v. SANDERSON et ux.

No. 391.

Supreme Court of North Carolina.

November 11, 1953.

*409 Summersill & Summersill, Jacksonville, and Moore & Corbett, Burgaw, for plaintiffs, appellees.

Wyatt E. Blake, Burgaw, for defendants, appellants.

ERVIN, Justice.

The defendants assert primarily that the evidence of the plaintiffs does not suffice to show adverse possession for twenty years within the purview of G.S. § 1-40, and that the action ought to have been involuntarily nonsuited on that ground in the trial court.

When the evidence is interpreted in the light most favorable to the plaintiffs, it discloses these facts:

1. On January 12, 1948, L. W. Everett executed a deed sufficient in form to convey the 210 acres to the plaintiffs in fee.

2. For at least thirty-five consecutive years antedating his deed, L. W. Everett put the 210 acres to the only uses to which they could then be applied. In so doing, he kept and fed hogs on the land throughout each year; he pastured cattle on the land during the entire grazing season of each year; and he permitted rent-paying tenants to operate fisheries on the land during the entire fishing season of each year. He maintained hog-pens and a fish house on the land in connection with these operations. Moreover, he cut cedar trees on the land when he could find a market for cedar posts.

3. The activities of L. W. Everett and his rent-paying tenants on the 210 acres were carried on openly and publicly, and were known to all the people in the vicinity of the premises.

4. In carrying on their activities, L. W. Everett and his rent-paying tenants employed the entire 210 acres, whose external boundaries were plainly delineated by a fence, a high hill, and the waters of the ocean and a bay.

5. During the entire period specified in paragraph 2, L. W. Everett openly and publicly claimed title in fee to the 210 acres, and excluded from them those persons who undertook to enter upon them without his permission.

6. The defendants entered upon the 210 acres against the will of the plaintiffs a few months before the issuance of the summons.

A just and learned judge, the late Justice Platt D. Walker, gave us this celebrated definition of adverse possession in the leading case of Locklear v. Savage, 159 N.C. 236, 74 S.E. 347, 348: "What is `adverse possession' within the meaning of the law has been well settled by our decisions. It consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and 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. It must be decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that he is exercising thereon the dominion of owner."

When the facts in evidence are laid alongside this famous definition, it is manifest that the trial judge rightly refused to dismiss the action upon a compulsory nonsuit. The facts are ample to show that the grantor of the plaintiffs was in the actual possession of the locus in quo under known and visible lines and boundaries for the full statutory period of twenty years, and that his actual possession during the entire statutory period was open, notorious, and visible, exclusive, continuous, and uninterrupted, *410 and under claim of right or title by him. G.S. § 1-40; Alexander v. Richmond Cedar Works, 177 N.C. 137, 98 S.E. 312; Wall v. Wall, 142 N.C. 387, 55 S.E. 283; Loftin v. Cobb, 46 N.C. 406, Bynum v. Carter, 26 N.C. 310; Williams v. Buchanan, 23 N.C. 535, 35 Am.Dec. 760; Simpson v. Blount, 14 N.C. 34; Carter v. Stewart, 149 Ark. 189, 231 S.W. 887, 232 S.W. 936; Kellogg v. Huffman, 137 Cal. App. 278, 30 P.2d 593; Berry v. Cohn, 47 Cal. App. 19, 189 P. 1044; McRae v. Ketchum, 138 Fla. 610, 189 So. 853; Davis v. Haines, 349 Ill. 622, 182 N.E. 718; O'Banion v. Simpson, 44 Nev. 188, 191 P. 1083; Fulton v. Rapp, Ohio App., 98 N.E.2d 430.

The defendants insist secondarily that the trial judge committed reversible error in admitting testimony over their objections, and that they are entitled to have the cause tried anew on that account.

This position is insupportable. The evidence indicating that L. W. Everett claimed the locus in quo during the possessory period was admissible to show that he occupied the premises under a claim of right or title. Bunch v. Bridgers, 101 N.C. 58, 7 S.E. 584; Phipps v. Pierce, 94 N.C. 514; Smith v. Reid, 51 N.C. 494; Stansbury on North Carolina Evidence, section 160. The testimony of some of the witnesses that it was generally reputed in the community during the possessory period that the locus in quo belonged to L. W. Everett was not competent to establish title. Sullivan v. Blount, 165 N.C. 7, 80 S.E. 892; Locklear v. Paul, 163 N.C. 338, 79 S.E. 617; Stansbury on North Carolina Evidence, section 148. It may be argued with much reason, however, that this testimony was rightly received to show notoriety of L. W. Everett's claim of title and notice of the same to the true owner. 2 C.J.S., Adverse Possession, § 223. We are spared the task of making a decision on this point by the conduct of the defendants, who waived the objections covering the receipt of this particular evidence by allowing the same witnesses to testify without objection to substantially the same facts in other portions of their examinations. Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326; Lipe v. Guilford Nat. Bank, 236 N.C. 328, 72 S.E.2d 759; Sprinkle v. City of Reidsville, 235 N.C. 140, 69 S.E.2d 179; Spivey v. Newman, 232 N.C. 281, 59 S.E.2d 844.

For the reasons stated, the judgment is