State v. Johnson

Annotate this Case

179 S.E.2d 371 (1971)

278 N.C. 126

STATE of North Carolina v. James E. JOHNSON, Jr., Albert S. Killingsworth and wife, Elizabeth E. Killingsworth, Agnes M. Cocke Mayer, Trustee, Hugh M. Morton and wife, Julia T. Morton, William L. Hill, II, Trustee, the Southern National Bank of N. C., Michael DeLoach; Del-Cook Lumber Company, Inc., and Westwind Corp., Original Defendants, Frank O. Sherrill and wife, Ruth J. Sherrill, Additional Defendants.

No. 55.

Supreme Court of North Carolina.

March 10, 1971.

*377 Stevens, Burgwin, McGhee & Ryals by Karl W. McGhee and Richard M. Morgan, Wilmington, for Frank O. Sherrill and wife, Ruth J. Sherrill, defendants appellants.

Robert Morgan, Atty. Gen., Parks H. Icenhour, Asst. Atty. Gen., for the State of North Carolina, plaintiff appellee.

Alan A. Marshall and Lonnie B. Williams, Marshall, Williams & Gorham, Wilmington, for James E. Johnson, Jr., Albert *378 S. Killingsworth and wife, Elizabeth E. Killingsworth, defendants appellees.

HUSKINS, Justice:

We note at the outset that appellants have abandoned their exception and assignment of error addressed to the findings of fact and conclusions of law with respect to the second issue. As to the first and third issues, however, appellants strenuously insist that the trial judge committed reversible error. This requires examination of the exceptions and assignments relating to those issues. We shall deal with them in numerical order.

ISSUE I

This action was instituted under authority conferred by Article 6 of Chapter 146 of the General Statutes which provides for acquisition of lands on behalf of the State. G.S. § 146-24(c), as amended by Chapter 512 of the 1967 Session Laws, provides that if negotiations are unsuccessful, "the Department of Administration may request permission of the Governor and Council of State to exercise the right of eminent domain and acquire any such land by condemnation in the same manner as is provided for the State Highway Commission by article 9 of chapter 136 of the General Statutes." Thus the procedures for acquisition to the time of condemnation are governed by Article 6 of Chapter 146, while the condemnation, if required, is regulated by Article 9 of Chapter 136. Appellants assign errors with regard to both the procedure employed and the condemnation itself.

Appellants contend that the trial judge erred in finding that the State complied with "all procedural matters set forth in Article 9 of Chapter 136 of the General Statutes." The State did not comply, say the Sherrills, with G.S. § 136-104 which provides that upon "the amending of any complaint and declaration of taking affecting the property taken" a supplemental memorandum of action must be filed with the register of deeds of the county. This document must contain various information, including names of interested parties, descriptions of the property affected, and the relevant facts about the lawsuit. The State admits that it did not file such a supplement but contends it was not required to do so inasmuch as the amendments to its complaint did not affect the property taken within the meaning of the statute.

The complaint and declaration of taking was amended twice. The first amendment added Sherrill and wife as additional defendants and alleged "upon information and belief that * * * [they] have or claim to have an interest in the land described in this Complaint. * * *" The second amendment substituted a new description of the land to be taken for the original description in the complaint.

Words of a statute must be construed, insofar as possible, to effectuate the legislative intent. Reed Supply Co. v. Da Pow Developers, Inc., 277 N.C. 119, 177 S.E.2d 273 (1970); In Re Dillingham, 257 N.C. 684, 127 S.E.2d 584 (1962). The purpose of paragraph one of G.S. § 136-104 is to vest title in the State upon the filing of the complaint, the declaration of taking, and the deposit in cash of the estimated compensation. North Carolina Highway Commission v. York Industrial Center, 263 N.C. 230, 139 S.E.2d 253 (1964). The manifest purpose of the second paragraph of the statute is to assure public record of the change in ownership. The second sentence of the second paragraph, with which we are concerned here, was inserted by the 1963 Legislature. It reads: "Upon the amending of any complaint and declaration of taking affecting the property taken, the State Highway Commission shall record a supplemental memorandum of action." The obvious intent of the sentence is to assure that any change in the complaint or declaration of taking that affects the property will likewise be entered into the land records of *379 the county. Appellants' contention that said sentence means that a supplemental memorandum of action must be filed as to all amendments, significant or insignificant, to the original complaint is not sound. Where the purpose of the statute is to require notice of ownership, an amendment to the complaint which only adds additional parties defendant who may or may not share in the proceeds requires no supplemental notice to the public. The same is true with respect to an amendment that only substitutes a more specific metes and bounds description for a description less exact, both descriptions covering the same property. We therefore hold that a supplemental memorandum is required only where the amendment to the complaint and declaration of taking affects the property taken. This assignment of error is overruled.

Appellants next assign as error the conclusion of the trial judge that the requirements of Article 6 of Chapter 146 of the General Statutes were fully complied with prior to the institution of this action. G.S. § 146-23 and § 146-24 provide, in substance, that a State agency desiring to acquire land must file a statement of needs with the Department of Administration, and that department must then investigate "all aspects of the requested acquisition." If that department determines that it is in the best interest of the State to acquire the land, it must negotiate with the owners for its purchase. If the negotiations are successful, a proposal is submitted to the Governor and Council of State for the purchase of the property. If negotiations are unsuccessful the Department of Administration may petition the Governor and Council of State for permission to condemn the land in the manner set out in Chapter 136 of the General Statutes. State v. Core Banks Club Properties, Inc., 275 N.C. 328, 167 S.E.2d 385 (1969).

In the instant case, appellants first contend that the Department of Archives and History made no request for acquisition of all the lands described in the complaint, some 333.515 acres, but requested only an area comprising about twenty-five acres. This contention is based on appellants' interpretation of a letter from the Director of the Department of Archives and History to the Department of Administration which apparently alerted that department to the needs of the Department of Archives and History with respect to the land in question. That letter, in pertinent part, reads: "In pursuance of our telephone conversation of a few minutes ago, the Department of Archives and History hereby requests the Department of Administration, Property Control and Construction Divison, to take immediate legal action to stop or prevent any steps or measures which might damage or destroy remains or relics of Confederate Fort Fisher, in the area immediately south of present Fort Fisher Historic Site, in New Hanover County."

The trial court found as a fact that the application was for acquisition of "the subject lands." Findings of fact by the trial court, if supported by any competent evidence, are conclusive on appeal. S. & R. Auto & Truck Service v. City of Charlotte, 268 N.C. 374, 150 S.E.2d 743 (1966); Mills v. Tri-State Motor Transit Co., 268 N.C. 313, 150 S.E.2d 585 (1966); Wall v. Timberlake, 272 N.C. 731, 158 S.E.2d 780 (1968). And this is so notwithstanding evidence to the contrary. Spartan Equipment Co. v. Air Placement Equipment Co., 263 N.C. 549, 140 S.E.2d 3 (1965); North Carolina State Highway Commission v. Brann, 243 N.C. 758, 92 S.E.2d 146 (1956); 2 McIntosh, N.C. Practice and Procedure (2d Ed., 1956) § 1782(6). Here, the record contains competent evidence that the letter referred to above related to the entire area south of Fort Fisher and that the request was so understood by the Department of Administration, the Governor, and the Council of State. This finding of fact and the conclusion of law based thereon will not be disturbed.

Appellants further contend that no investigation was made of the need of the *380 property condemned, and particularly the southermost portion comprising the end of the peninsula south of Fort Fisher. They contend that no attempt was made to establish the actual site of Old Fort Fisher for the purpose of determining how best to preserve its historical and archaeological value. The trial judge, however, found as a fact that "the investigation was full and adequate under the circumstances." There is evidence to support that conclusion and it will not be disturbed, notwithstanding that there is some evidence to the contrary. North Carolina State Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967). There is evidence in the record that the Department of Administration had at its disposal reports of the Department of Archives and History relevant to the investigation; that the area was personally visited by representatives of the department; that these representatives flew over the land; and that various maps were consulted. Hence there is evidence to support the findings of the trial judge, and his findings support his legal conclusions. North Carolina State Highway Commission v. Nuckles, supra. This assignment is overruled.

Appellants' assignment of error that no report of an investigation was made to the Governor and Council of State is based on the premise that no investigation was made. Inasmuch as we uphold the finding of fact of the trial judge that a full investigation was made, this assignment fails.

Finally, appellants contend that the Department of Administration made no specific finding that the purchase or acquisition of said property is in the best interest of the State. G.S. § 146-24(a) provides: "If, after investigation, the Department determines that it is in the best interest of the State that land be acquired, the Department shall proceed to negotiate with the owners of the desired land for its purchase." Since the Department did in fact proceed to acquire the land, it is a permissible inference that such a determination was made. The statute does not require a specific written report that the acquisition is in the best interest of the State. The trial judge found that such a determination was made and the totality of the evidence supports that finding.

It is worthy of note that under present law no request from a State agency is necessary. Chapter 1091 of the 1969 Session Laws, ratified 1 July 1969, empowers the Department of Administration to acquire property "by purchase, gift, condemnation or otherwise" for certain authorized purposes, including the acquisition of "(6) Lands involving historical sites, together with such adjacent lands as may be necessary for their preservation, maintenance and operation." Since this action was instituted before the effective date of that enactment, it does not apply to this litigation. Ashley v. Brown, 198 N.C. 369, 151 S.E. 725 (1930). Even so, it would be meaningless to hold this proceeding defective on strained procedural technicalities no longer required.

We hold that the State has complied with the statutory requirements necessary for the taking of the lands involved in this action. The findings and conclusions of the trial judge in that respect will be upheld.

ISSUE III

What is the status of title as between the defendants? Appellants contend that the Torrens registration of 1916 was invalid for failure to comply with stautory requirements as to publication. Chapter 128 of the 1915 Public Laws amended the Torrens Act to require eight weeks publication instead of four. A publisher's affidavit shows that publication lasted only four weeks. Appellants say this defect is jurisdictional and therefore the lower court erred in finding as a fact and concluding as a matter of law that the property in question was duly registered under the Torrens system from 1916 to 1966, at which time it was removed by judicial decree. *381 This requires examination of the Torrens Act and its application to the facts appearing of record in this case.

The judicial system of registering titles to land was enacted in North Carolina by Chapter 90 of the 1913 Public Laws, now codified as Chapter 43 of the General Statutes. It is known generally as the Torrens Law. "The principle of the `Torrens System' is conveyance by registration and certificate instead of by deed, and assimilates the transfer of land to the transfer of stocks in corporations." Cape Lookout Company v. Gold, 167 N.C. 63, 83 S.E. 3 (1914); Frederick B. McCall, The Torrens SystemAfter Thirty-Five Years, 10 N.C. L.Rev. 329 (1932).

The Torrens Law authorizes any person in the peaceable possession of land in North Carolina who claims an estate of inheritance therein to "prosecute a special proceeding in rem against all the world in the superior court for the county in which such land is situate, to establish his title thereto, to determine all adverse claims and have the title registered." G.S. § 43-6.

Such proceeding for the registration of title is commenced "by a petition to the court by the persons claiming, singly or collectively, to own or have the power of appointing or disposing of an estate in fee simple in any land, whether subject to liens or not." The petition must be signed and verified by each petitioner, must contain a full description of the land to be registered together with a plot of same by metes and bounds, must show when, how and from whom it was acquired, list all known liens, interests, equities and claims, adverse or otherwise, vested or contingent, and give full names and addresses, if known, of all persons who may be interested by marriage or otherwise, including adjoining owners and occupants. G.S. § 43-8.

When such petition is filed the clerk is required to issue a summons directed to the sheriff of every county in which named interested persons reside, naming them as defendants. The summons is returnable as in other cases of special proceedings, "except that the return shall be at least sixty days from the date of summons." It must be served at least ten days before the return thereof and the return recorded in the same manner as in other special proceedings. G.S. § 43-9.

The clerk is required, at the time of issuing the summons, to publish a notice of filing of the petition in some secular newspaper published in the county wherein the land is situate, once a week for eight issues of such paper. The notice shall be addressed "To whom it may concern" and shall set forth the title of the proceeding, the relief demanded, and state the return day of the summons. "The provisions of this section, in respect to the issuing and service of summons and the publication of the notice, shall be mandatory and essential to the jurisdiction of the court to proceed in the cause: Provided, that the recital of the service of summons and publication in the decree or in the final judgment in the cause, and in the certificate issued to the petitioner as hereinafter provided, shall be conclusive evidence thereof." G.S. § 43-10.

The petition is then set for hearing upon the pleadings and exhibits filed. If any person files an answer claiming an interest in the land described in the petition, the matter is referred to the "examiner of titles" who hears the cause on such parol or documentary evidence as may be offered, makes such independent examination of the title as may be necessary, and files with the clerk a report of his conclusions of law and fact, setting forth the state of the title, together with an abstract of title to the lands. G.S. § 43-11(a), (b). Any party to the proceeding may file exceptions to said report, whereupon the clerk must transmit the record to the judge of superior court for his determination. If title is found to be in the petitioner, "the judge shall enter a decree to that effect, ascertaining all limitations, liens, etc., declaring the land entitled to registration accordingly, and the same, together with the *382 record, shall be docketed by the clerk of the court as in other cases, and a copy of the decree certified to the register of deeds of the county for registration as hereinafter provided." G.S. § 43-11(c).

Judgment by default is not permitted. The court must require an examination of the title in every instance except as to parties who, by proper pleadings, admit petitioner's claim. If no answer is filed, the clerk must refer the matter to the examiner of titles anyway. If title is found in the petitioner, then the clerk enters a decree to that effect, declares the land entitled to registration, and certifies it for registration after approval by the judge of the superior court. G.S. § 43-11(d).

"Every decree rendered as hereinbefore provided shall bind the land and bar all persons and corporations claiming title thereto or interest therein; quiet the title thereto, and shall be forever binding and conclusive upon and against all persons and corporations, whether mentioned by name in the order of publication, or included under the general description, `to whom it may concern'; and every such decree so rendered * * * shall be conclusive evidence that such person or corporation is the owner of the land therein described, and no other evidence shall be required in any court of this State of his or its right or title thereto." G.S. § 43-12.

The county commissioners are required to furnish a book to the register of deeds, to be called "Registration of Titles", in which the register shall enroll, register and index (1) the decree of title mentioned in G.S. § 43-11(c) and (d), (2) the copy of the plot contained in the petition, (3) all subsequent transfers of title, and (4) all voluntary and involuntary transactions in any wise affecting the title to the land, authorized to be entered thereon. G.S. § 43-13. Upon the registration of such decree, the register of deeds is directed to issue an "owner's certificate of title", the form of which is prescribed, bearing a number which is retained as long as the boundaries of the land remain unchanged. G.S. § 43-15; G.S. § 43-16.

Every registered owner of land brought under the Torrens System (with certain exceptions not pertinent here) holds the land free from any and all adverse claims, rights or encumbrances not noted on the certificate of title. G.S. § 43-18. And "[n]o title to nor right or interest in registered land in derogation of that of the registered owner shall be acquired by prescription or adverse possession." G.S. § 43-21.

The only way to transfer or affect the title to registered land is by registration of the writing, instrument or document by which such transfer is accomplished. Thus no voluntary or involuntary transaction affects the title to registered lands until registered, and the registration of titles book is the sole and conclusive legal evidence of title. G.S. § 43-22.

No decree of registration and certificate of title issued pursuant thereto prior to March 10, 1919, may be adjudged invalid, revoked or set aside unless the action or proceeding in which their validity is attacked be commenced, or the defense alleging the invalidity be interposed, before March 10, 1920. G.S. § 43-26.

Any person claiming any right, title or interest in registered land adverse to the registered owner, arising after the date of the original decree of registration, may file with the register of deeds of the county in which such decree was rendered or certificate of title thereon was issued, a verified written statement setting forth fully the right, title or interest claimed, how or from whom it was acquired, referring to the number, book and page of the certificate of title of the registered owner, together with a metes and bounds description of the land, and containing the adverse claimant's address and place of residence, and such statement must be noted and filed by the register of deeds. An action to enforce such claim may then be maintained provided it is commenced *383 within six months of the filing of the statement. G.S. § 43-27. If action is not timely commenced as required, the register of deeds must make a memorandum notation to that effect and cancel upon the registry the adverse claim so asserted. G.S. § 43-28.

The sale and transfer, in whole or in part, of registered land is accomplished by the execution and acknowledgment of a paperwriting in the form set out in G.S. § 43-31, which paperwriting has the full force and effect of a deed in fee simple. This paperwriting must be presented to the register of deeds together with the seller's certificate of title, and the transaction is then duly noted and registered in accordance with the provisions of the Torrens Law. G.S. § 43-31; G.S. § 43-32; G.S. § 43-33; G.S. § 43-37.

The other sections of the Act have no bearing upon the questions now before the Court. This summary of the pertinent parts of the Torrens Act shows that it "not only manifests a purpose on the part of the General Assembly to establish a title in the registered owner, impregnable against attack at the time of the decree, but also to protect him against all claims or demands not noted on the book for the registration of titles, and to make that book a complete record and the only conclusive evidence of the title." Dillon v. Broeker, 178 N.C. 65, 100 S.E. 191 (1919).

"The general purpose of the Torrens system is to secure by a decree of court, or other similar proceedings, a title impregnable against attack; to make a permanent and complete record of the exact status of the title with the certificate of registration showing at a glance all liens, encumbrances, and claims against the title; and to protect the registered owner against all claims or demands not noted on the book for the registration of titles. The basic principle of this system is the registration of the official and conclusive evidence of the title of land, instead of registering, as the old system requires, the wholly private and inconclusive evidences of such title." Frederick B. McCall, The Torrens SystemAfter Thirty-Five Years, 10 N.C.L.Rev. 329 (1932); Cape Lookout Co. v. Gold, 167 N.C. 63, 83 S.E. 3 (1914); 8A Thompson on Real Property (Grimes Ed., 1963), § 4353.

Pertinent language from G.S. § 43-10, the section specifying that eight weeks publication is necessary, reads as follows: "The provisions of this section, in respect to the issuing and service of summons and the publication of the notice, shall be mandatory and essential to the jurisdiction of the court to proceed in the cause: Provided, that the recital of the service of summons and publication in the decree or in the final judgment in the cause, and in the certificate issued to the petitioner as hereinafter provided, shall be conclusive evidence thereof." (Emphasis added) In the case before us the final decree of registration recites. "* * * it appearing that summons has been duly served upon all parties in interest, and that publication of notice has been duly made. * * *"

The words of a proviso must be construed to effectuate rather than to defeat the purpose of the statute. "A proviso should be construed together with the enacting clause or body of the act, with a view to giving effect to each and to carrying out the intention of the legislature as manifested in the entire act and acts in pari materia." 82 C.J.S. Statutes § 381; Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67 (1964); 7 N.C. Index 2d, Statutes, § 6.

When viewed in light of the stated purpose of the Torrens Act, it is clear that the proviso in G.S. § 43-10 is intended to cure any jurisdictional defect with respect to issuance and service of summons and the publication of notice so as to foreclose all jurisdictional attacks on a Torrens title.

Our conclusion in that respect is fortified by Article 5 of Chapter 43 of the General Statutes which prescribes the methods *384 for bringing forward and asserting adverse claims after registration of title. G.S. § 43-26 provides in pertinent part:

"No decree of registration heretofore entered, and no certificate of title heretofore issued pursuant thereto, shall be adjudged invalid, revoked, or set aside, unless the action or proceeding in which the validity of such decree of registration or certificate of title issued pursuant thereto is attacked or called in question be commenced or the defense alleging the invalidity thereof be interposed within twelve months from March 10, 1919."

We therefore hold that the recital in the final Torrens decree of registration that "publication of notice has been duly made" is conclusive evidence of the fact, and that any attack on the 1916 decree is foreclosed by the limitation imposed in G.S. § 43-26. Northwest Holding Co. v. Evanson, 265 Minn. 562, 122 N.W.2d 596 (1963). The appellants cannot go behind the conclusive language of the decree.

Appellants contend that the boundary which separated Hugh MacRae and Company lands from Sherrill lands was irrevocably fixed by the exchange of deeds in 1943 and that the forces of natural accretion and erosion have no effect upon the present boundary. We now examine the validity of that contention.

"`Accretion' denotes the act of depositing, by gradual process, of solid material in such a manner as to cause that to become dry land which was before covered with water." 5A Thompson on Real Property (Grimes Ed., 1957), § 2560; 6 Powell on Real Property, § 983 et seq. It is the opposite of avulsion, which is the "sudden and perceptible gain or loss of riparian land." 5A Thompson, supra, § 2561. Avulsion usually results from sudden, powerful, natural forces, such as a flood or a hurricane. Avulsion, unlike accretion, works no change in legal title. 5A Thompson, supra, § 2561.

Moreover, where accretions form on each side of a body of water and eventually meet, displacing the water which formed the boundary, a new property line is formed at the point of contact, and the body of water is no longer the boundary. Hogue v. Bourgois, 71 N.W.2d 47, 54 A.L.R.2d 633 (N.D.1955). The rule is correctly stated in 4 Tiffany on Real Property (3d Ed., 1939), § 1228, as follows:

"In the case of an island, the same rule applies as in the case of land bounded by water on one side only, that is, the boundaries are presumed to vary with any gradual change in the line between the land and the water or, as it is otherwise expressed, the owner of an island is entitled to land added thereto by accretion to the same extent as the owner of land on the bank or shore of the mainland. * * * In case accretions to the island and to the mainland eventually meet, the owner of each, it is said, owns the accretions to the line of contact, or, as we would prefer to express it, the boundary of an island, as that of the mainland, changes as its edge or shore line changes, and when there is no longer any island, owing to the growth of the accretions, he to whom the island belonged owns to where its edge or shore line was last visible."

"Where the stream forms the boundary between two tracts of land, and both shore lines receive accretions until they come together, the line of contact will then be the division line." 93 C.J.S. Waters § 76. The following cases support this principle: Buse v. Russell, 86 Mo. 209 (1885); Polack v. Steinke, 100 Ark. 28, 139 S.W. 538 (1911); Glassell v. Hansen, 135 Cal. 547, 67 P. 964 (1902); Waldner v. Blachnik, 65 S.D. 449, 274 N.W. 837 (1937); People v. Ward Redwood Co., 225 Cal. App. 2d 385, 37 Cal. Rptr. 397 (1964); Durfee v. Keiffer, 168 Neb. 272, 95 N.W.2d 618 (1959). See Annotation, Applicability of rules of accretion and reliction so as to confer upon owner of island or bar in navigable stream title to additions, 54 A.L.R.2d 643 (1957).

*385 That New Inlet completely closed by accretion in 1933 thus has controlling significance. When New Inlet was in existence, the land south of New Inlet was in effect an island, and the land to the north of New Inlet was mainland. Therefore, upon the closing of the inlet, the southern boundary line of the lands described in the Torrens decree and in Certificate of Title No. 8 was fixed by law on the ground where the accretion from the north finally connected with the accretion from the south to close the channel.

The avulsive reopening of a different inlet in 1944 at a point north of New Inlet's 1933 location worked no change in the location of that boundary line or in the legal title to the lands lying north and south of it. The newborn inlet was not the southern boundary of the MacRae lands. 5A Thompson, supra, § 2561. Rather, Hugh MacRae and Company became riparian owners on both sides of it. Then the natural forces of accretion and erosion began anew. The location of the inlet shifted slowly and imperceptibly southward by continuous wearing and washing away of sands on the south, and, at the same time, by slow and imperceptible alluvion and reliction resulting in sand accumulations on the north. After many years of this process, this inlet has moved south more than a mile and a half, passing through the old location of New Inlet on the way. When, in this fashion, it shifted southward into the old location of New Inlet, it did not, by reincarnation become New Inlet and the boundary line. The boundary between the owners had already become fixed by law at an ascertainable line on dry land without reference to any waterline, and the southward movement of the avulsive inlet had no effect on the fixed boundary. This is true without regard to the exchange of deeds between Hugh MacRae and Company and the Sherrills on 9 December 1943. These deeds had no effect whatever on the southern boundary of the lands described in the Torrens decree and in Certificate of Title No. 8. G.S. § 43-22.

We held in Carolina Beach Fishing Pier v. Town of Carolina Beach, 277 N.C. 297, 177 S.E.2d 513 (1970), that where a body of water constitutes the boundary of a tract of land, and where the gradual and imperceptible forces of erosion or accretion change the high water mark of that body of water, the boundary is accordingly changed. In the instant case, however, New Inlet no longer existed and no longer constituted the legal boundary. Of course, as the new and different 1944 inlet churned its way inexorably to the south, its location for a short time was on the very spot where the pre-1933 New Inlet had flowed years earlier. Even so, a "traveling inlet" does not uproot and supplant a boundary line as it passes over it unless such inlet in fact was the boundary when it started its journey.

Our position is supported by cases from other jurisdictions. In Sweringen v. St. Louis, 151 Mo. 348, 52 S.W. 346 (1899), it was said: "It is fundamental in the law of accretions that the lands to which they attach must be bounded by the river or stream to entitle its owner to such increase." The general principles to which we adhere in this casethat accretion and erosion do not change boundaries unless the body of water is a boundary linefinds support in the following authorities: State ex rel. State Highway Commission v. Esselman, 179 S.W.2d 749 (Mo.App., 1944); People ex rel. Eddy v. Spencer, 5 Mich. App. 1, 145 N.W.2d 812 (1966); Perry v. Sadler, 76 Ark. 43, 88 S.W. 832 (1905); Lake Front East 55th Street Co. v. Cleveland, 36 N.E.2d 196 (Ohio App., 1941).

Moreover, textual treatments of the law of accretion and erosion prescribe the qualification that the watercourse must constitute the boundary of the property to entitle the riparian or littoral landowner to the benefits of accretion or to take from him the losses caused by erosion. See, for example, 5A Thompson, supra, § 2560, which reads: "Where a water-line is the boundary of a lot or tract of land, such line, no matter how it shifts, remains the *386 boundary. * * *" See also, 11 C.J.S. Boundaries § 34; 65 C.J.S. Navigable Waters § 82; 12 Am.Jur.2d, Boundaries, § 12, et seq.; 56 Am.Jur., Waters, § 477; 4 Tiffany on Real Property (3d Ed., 1939), § 1220. For the reasons above set out, we hold that the southern boundary of the Hugh MacRae and Company lands, and its successors in title, is at the point where the accretion from the north connected with the accretion from the south to close New Inlet in 1933.

We further hold that defendants Frank O. Sherrill and wife do not have a right-of-way over the Johnson and Killingsworth lands from the vicinity of Old Fort Fisher to the southern boundary of said lands. The Torrens Law provides that the registration of title book "shall be and constitute sole and conclusive legal evidence of title." G.S. § 43-22. Title to the lands over which a right-of-way is claimed by the Sherrills was registered under the provisions of the Torrens Law from 1916 to 1966. The deed from Frank O. Sherrill and wife to Hugh MacRae and Company, Inc., in 1943 seeking to establish a boundary line and reserving a right-of-way across the lands of Hugh MacRae and Company, Inc., was not recorded in the registration of title book in New Hanover County. No notice of the existence thereof was made in said registration of title book or upon Certificate of Title No. 8 held by Hugh MacRae and Company, Inc. Hence said deed and purported reservation of right-of-way by the Sherrills had no effect whatever on the lands covered by the Torrens title. G.S. § 43-18; G.S. § 43-22.

Furthermore, the Sherrills claim a right-of-way by reservation and not by grant. Yet they have never owned any of the lands over which they purportedly reserved a right-of-way. "An easement can be created only by a person who has title to or an estate in the servient tenement." 25 Am.Jur.2d, Easements and Licenses, § 15; see 28 C.J.S. Easements § 24 and cases cited. This alone is fatal to their right-of-way claim.

Frank O. Sherrill and wife allege in their pleadings and now contend that they own all of the land, beach land and marsh land lying south of a certain agreed boundary line established by an exchange of deeds between them and Hugh MacRae and Company, Inc., in 1943, said line being at the point where New Inlet was located in 1933 prior to closing.

In all actions involving title to real property, title is conclusively presumed to be out of the State unless it is a party to the action. G.S. § 1-36. The question of ownership here is essentially an action between individual litigants. The State, although a party for purposes of condemnation, claims title only by virtue of this condemnation and not otherwise. Hence, we indulge the presumption on this appeal that title is out of the State. Even so, there is no presumption in favor of one party or the other. Each litigant asserting ownership has the burden of showing title in himself. Moore v. Miller, 179 N.C. 396, 102 S.E. 627 (1920); Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759 (1953).

In support of their claim of ownership, the Sherrills offered in evidence a deed from D. C. Boyd and wife to Frank O. Sherrill dated 29 November 1938 and recorded 19 December 1938 in Book 66, page 515, Brunswick County Registry. (S-5) The description in that deed reads as follows:

"BEGINNING at the mouth of Lighthouse Creek, four beacon posts, and runs with Lighthouse Creek in a southeasterly direction about four miles to the Atlantic Ocean; thence with the Atlantic Ocean in a northeasterly direction to new inlet; thence with New Inlet to the Cape Fear River; thence with the Cape Fear River to the beginning, This being the balance of the property bought by T. F. Boyd about 20 years ago less that part which he has already sold to other parties."

*387 The Sherrills also offered in evidence a deed from Hugh MacRae and Company, Inc., to Frank O. Sherrill dated 9 December 1943 and recorded 14 December 1943 in Book 76, page 480, Brunswick County Registry. (S-6) The description in this deed reads as follows:

"BEGINNING in the center of the middle cord of the Rock Dam across New Inlet, the point being marked with a cross cut in the Rock Dam it being the beginning corner of a tract of land conveyed by the party of the second part to the party of the first part by deed of even date, and running from said point. "1. South 70 degrees 20 minutes East Seven Thousand one-hundred and fifty (7150) feet crossing what is known as Still Water Basin to low water mark on the shore of the Atlantic Ocean, the line being marked by an iron monument on the beach One-hundred and ten (110) feet from low water mark. "2. Thence with low water mark of the Atlantic Ocean South 15 degrees West Forty-two Thousand (42,000) feet to the point of Cape Fear. "3. Thence with the Southern shore of Bald Head Island with low water mark North 62 degrees West Twenty-Thousand (20,000) feet to a point beyond the Western shore of said Island in the ship channel of Cape Fear River. "4. Thence up the various courses of the ship channel of the Cape Fear River in a Northeasterly direction to a point in said channel North 70 degrees and 20 minutes West Two-Thousand and three hundred (2300) feet from the point of beginning. "5. Thence South 70 degrees and 20 minutes East Two-Thousand three hundred (2300) feet, to the beginning. "Including the property generally known as the Bald Head Island Tract."

The various methods of showing prima facie title to land in actions of ejectment and other actions involving the establishment of land titles are enumerated in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889). In such actions, he who asserts ownership must rely upon the strength of his own title. Mobley v. Griffin, supra; Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800 (1903); Moore v. Miller, 179 N.C. 396, 102 S.E. 627 (1920). The burden of proof is upon the claimant. Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451 (1946).

In the present action Frank O. Sherrill, without exhibiting any grant from the State, attempts to show open, notorious, continuous, adverse possession of a portion of the lands condemned, under color of title in himself and those under whom he claims for seven years or more before this action was broughtone of the methods by which title may be shown.

Taking the evidence offered by the Sherrills in the light most favorable to them, we are of the opinion, and so hold, that there is a total failure of proof as to the location of the land described in the two deeds offered by them. In Smith v. Fite, 92 N.C. 319 (1885), the first headnote summarizes the opinion in these words: "Where a party introduces a deed in evidence, which he intends to be used as color of title, he must prove that its boundaries cover the land in dispute, to give legal efficacy to his possession." In other words, the Sherrills must not only offer the deeds upon which they rely, they also "must by proof fit the description in the deed to the land it coversin accordance with appropriate law relating to course and distance, and natural objects called for as the case may be." Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673 (1951). Every litigant who affirmatively asserts his ownership of land "must show that the very deeds upon which he relies convey, or the descriptions therein contained embrace within their bounds, the identical land in controversy. If one or more of his deeds convey less than the whole, he must show that the land conveyed thereby lies within the bounds, and forms a part, of the locus in quo. As *388 to the identity of the land conveyed, a deed seldom, if ever, proves itself. Fitting the description contained in the deed to the land in controversy, or vice versa, must be effected by evidence dehors the record." Skipper v. Yow, 238 N.C. 659, 78 S.E.2d 600 (1953). Accord, Seawell v. Boone's Mill Fishing Club, 249 N.C. 402, 106 S.E.2d 486 (1959); Scott v. Lewis, 246 N.C. 298, 98 S.E.2d 294 (1957); McDaris v. Breit Bar "T" Corporation, 265 N.C. 298, 144 S.E.2d 59 (1965).

The trial judge held that the Sherrills had failed to show title to any lands being condemned. We concur for that (1) the descriptions in the deeds offered were never fitted to the land in controversy, and (2) the evidence of adverse possession of any portion of the lands condemned was woefully inadequate. Adverse possession which will ripen into title must be for the prescribed period of time and be clear, definite, positive and notorious. It must be continuous, adverse, hostile, under known and visible lines and boundaries, and exclusive during the statutory period under a claim of title to the land occupied. Bland v. Beasley, 145 N.C. 168, 58 S.E. 993 (1907); Snowden v. Bell, 159 N.C. 497, 75 S.E. 721 (1912); Locklear v. Savage, 159 N.C. 236, 74 S.E. 347 (1912); Barfield v. Hill, 163 N.C. 262, 79 S.E. 677 (1913); Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117 (1943); Mallett v. Huske, 262 N.C. 177, 136 S.E.2d 553 (1964). No such possession is shown. In fact, with respect to the lands lying north of Corncake Inlet and south of New Inlet as it was located in 1933 prior to closing, evidence of adverse possession by the Sherrills is practically nonexistent.

For the reasons stated in this opinion, we hold that (1) the State has complied with the statutory requirements necessary for the condemnation of the lands described in the amended complaint; (2) James E. Johnson, Jr., and Albert S. Killingsworth and wife, Elizabeth E. Killingsworth, were the owners in fee simple at the time of the taking (subject only to the monetary encumbrances set forth in Findings of Fact #2 and #3, Issue III) of all the lands condemned which lie north of a line on the ground where accretion from the north connected with accretion from the south to close the channel of New Inlet in 1933; and (3) Frank O. Sherrill and wife, Ruth J. Sherrill, have proven no title to any of the lands condemned. The judgment below is modified accordingly.

Modified and affirmed.

MOORE, J., did not participate in the consideration or decision of this case.

BOBBITT, Chief Justice (concurring).

I concur in the decision and all of the Court's opinion except the portion thereof which holds that, by reason of the proviso in G.S. § 43-10, "the recital of the service of summons and publication in the decree or in the final judgment" shall be "conclusive evidence thereof," notwithstanding the court file discloses affirmatively that such service was not made. Although I disagree as to this particular point, other grounds set forth in the Court's opinion amply support the decision.

SHARP, J., joins in this concurring opinion.