
    MONK v. WILMINGTON.
    (Filed December 19, 1904).
    1. TRESPASS — Damages—Adverse Possession — Burden of Proof.
    
    In an action for damages for trespass to real estate, the plaintiff claiming title by adverse possession, the burden is on him to show continuous possession.
    2. ADVERSE POSSESSION — Presumption—Trespass—The Gode, see. lJ,e.
    
    There is no presumption that the possession of real estate is adverse.
    Douglas, J., dissenting.
    AgtioN by John W. Monk and another against the city of 'Wilmington, beard by Judge M. U. Justice and a jury, at April Term, 1901, of the Superior Court of New HaN-over County. Erom a judgment for the plaintiffs the defendant appealed.
    
      John D. Bellamy, Bellamy & Bellamy, T. E. Brown and Empie & Empie, for the plaintiffs.
    W. J. Bellamy, E. K. Bryan and H. McClammy, for the defendant.
   Connor, J.

The plaintiff seeks to recover upon a title founded upon a disseisin follotved by twenty years’ adverse possession. It is conceded that the original trespass by the plaintiff’s ancestor was wrongful. This does not necessarily mean that it was such an ouster as put the true owner to an action of ejectment and thereby put the statute of' limitations into operation. His Honor correctly told the jury that such possession to ripen into title must be open, notorious, continuous, exclusive, adverse, etc. The. defendant insists that this has not been shown. The plaintiff, John "W. Monlc, says that his father, after purchasing the thirty acres adjoining the locus in quo, in 1876 or 1877, ran his fence in the manner described by him, which it is claimed covers the land. He continued such occupancy as he had until his death in 1882. Iiis wife remained in the occupation of the same character until her death in 1885. Thomas J. Kenan, one of the plaintiff’s witnesses, the husband of the feme plaintiff, testified: “After she died my wife and John W. Monk rented the land to one Dodge. My wife and Mr. Monk made a division of the land in 1886. After division I put some cattle in pasture occasionally. I know the boundaries of the thirty-acre tract. That is an independent tract and has nothing to do with the land in controversy. After the widow of Thomas Monk died my wife and John W. Monk leased the locus for five years to Dodge.” After testifying to other matters, this witness continues: “Some seven acres of the land upon which the rock quarry is situated is fit for cultivation. You could have planted a crop where the rock quarry is now. That land was fit for cultivation. After the lease to Dodge was out, John W. Monk, the co-plaintiff, did not lease the seven acres where the rock quarry is to Souther-land, or Ehodes, or to any one else. Ehodes leased from John W. Monk the thirty-acre tract east of that. It was not leased to anybody after the Dodge lease was out, but Ehodes pastured his cattle there after he leased the other land from John W. Monk. Nor did John W. Monk do anything on the land after the Dodge lease was out. The Dodge lease was for five years from 1885.” Mr. Ehodes, a witness for the plaintiff, testified’: “In 1893 I rented some land from Mr. Monk. I don’t say I rented this seven acres. I rented all the land that John W. Monk owned between the New Bern road and the plank road, except five acres which was reserved on the side next to the plank road, which does not touch the place where the rock quarry now is. I pastured my cattle upon the land where the rock quarry is in 1893 until the rock quarry was started in 1899 and the fence was torn down. I used the land for pasture where the rock quarry is, and that was all it was used for. The thirty-acre tract and the other land which I rented was used for cultivation. I rented the land that I rented from Mr. Monk for five years from 1893 and until it was sold. When I had my cattle on the land in controversy Mr. W. A. Wright came to me one day, three or four or five years before they began to excavate rock at the rock quarry, and wanted to rent the seven acres in controversy, and I told him that I didn’t wish to rent it; that I had more land than I wanted, and I had already rented it; that I didn’t want it. I told him I thought I already had it rented, that I had rented it from Monk. He then tried to sell it to me, and I told him that I didn’t want to buy. This was in 1895, ’96 or ’97; it was before the rock quarry was started. I think it was three or four years before the rock quarry was started. The next thing I saw the rock quarry was going on there.”

It is elementary learning that the adverse possession necessary to bar the entry of the true owner must be continuous. Ruffin, J., in Malloy v. Bruden, 86 N. C., 251, says: “At all times there is a presumption in favor of the true owner, and he is deemed by law to have possession co-extensive with his title, unless actually ousted by the personal occupation of another; and so, too, whenever that oceupation by another ceases the title again draws to it the possession and the seisin of the owner is restored, and a subsequent entry by the same wrong-doer and under the same claim of title constitutes a new disseisin from the date of which the statute takes a fresh start.” In this case a break of two years was held sufficient to prevent the continuity of the possession. In Holdfast v. Shepherd, 28 N. C., 361, a break “of four and a half or five months” was held sufficient. Here the plaintiffs witnesses testify that there was a period of seven years during which Monk did nothing with the land. Rhodes, under a lease for an adjoining tract, pastured his cattle upon it. From 1877, the date of the first trespass, to 1890 was only thirteen years. The Dodge lease expired in 1890. In 1893 Monk leased to Rhodes the thirty-acre tract adjoining the locus in quo, and, so far as we can discover, asserts no claim or possession of the land after that time. Rhodes pastured his cattle on it, but says expressly “I do not say I rented this seven acres.” His entire testimony is consistent with that of Kenan, who says that Monk did not lease it to Rhodes. This is consistent with the fact shown by the plaintiffs that when Monk and his sister made partition of their father’s land this seven acres was not included, although the deed of Mary E. Monk to her brother for the thirty-acre adjoining tract and some other small parcels contains this language: “The foregoing described tracts, pieces or parcels of land being all the land owned by the late Thomas Monk which lies on the north of the old plank road.” The plaintiff says that after the execution of this deed his sister had no possession or occupancy of the land. It is true that Monk says, after the Dodge lease was out, “I leased the property to Mr. Southerland for five years, and after Mr. Southerland’s lease was out I leased it to Isaac Rhodes.” Two of his witnesses say that the locus in quo was not leased to Rhodes. It is difficult to reconcile the testimony of the plaintiffs’ witnesses with this statement. The lease was not put in evidence. The burden was on the plaintiff to show the continuous possession.

The defendant asked his Honor to instruct the jury: “There is no presumption that the possession of the plaintiffs and those under whom they claim is adverse.” This was refused and his Honor instructed the jury: “If you should find from the evidence that Thomas Monk and his son, J. W. Monk, bad actual possession of tbe disputed land, said possession is deemed to be adverse, and will be so beld until tbe contrary appears.” Tbe defendant excepted. It must be conceded that there is some conflict in tbe authorities upon this question. Judge Bynum, writing for a unanimous court, in Parker v. Banks, 79 N. C., 480, said: “The law never presumes a wrong; hence be who alleges an adverse possession must show it as well as allege it.” Tbe learned Justice discusses tbe question with bis usual clearness and force, sustaining tbe opinion by tbe most approved authorities. This seems to be in accord with section 146 of The Code: “In action for tbe recovery of real property or tbe possession thereof, or damages for a trespass on such property, tbe person establishing a legal title to tbe premises shall be presumed to have been possessed thereof within tbe time required by law; and tbe occupation of such premises by any other person shall be deemed to have been under and in subordination to tbe legal title, unless it appears that such premises have been beld and possessed adversely to such legal title for tbe time prescribed by law before the commencement of such action.” This Court beld, in Ruffin v. Overby, 88 N. C., 369, “That every possession of land by one other than tbe claimant is deemed to be adverse until proof to the contrary is made.” This section of Tbe Code, which is taken from tbe New York Code, has never been construed by this Court. We think that the defendant was entitled to tbe instruction asked.

Several other interesting questions are raised upon the record. The plaintiff put in evidence the deed from Adam Empie, administrator of J. S. Green, to W. A. Wright, bearing date March 16, 1813. lie then shows that this deed covers the locus in quo. The defendant also puts this deed in evidence. The plaintiff asked his Honor to charge the jury that, in the absence of any evidence showing that Mr. Empie was administrator and obtained license to sell tbis land, tbe deed conveyed no title. Whether after putting the deed in evidence the plaintiff can thus attack it is not clear. It will be observed that the deed is thirty years old. How far its recitals may be taken as true by reason of its age is an interesting question. If this deed conveys the title, it would seem that the plaintiff, together with the defendant, has shown an unbroken chain of title from the State to Hr. Wright, and that the statutory presumption in regard to the character of Monk’s occupancy would arise. Of course if this deed does not convey title his Honor was correct in holding that there was a break in the paper title. It does not appear why the record was not put in evidence. It is to be hoped that if this case shall again come to this Court the record will clearly present for construction the language of section 146 of The Code. It seems that the case of Ruffin v. Overby, 88 N. C., 369, is in conflict with this section. This may be explained »by reference to the fact that the ouster in that case occurred prior to 1868, as it did in Bryan v. Spivey, 109 N. C., 57. The question raised by the brief and argument that the action of the defendant in making the contract and removing the rock, being in violation of the provisions of the charter of the city, is ultra vires, not being raised by the pleadings, we deem it best to express no opinion in respect thereto. We think that there should be a

New Trial.

Douglas, J.,

dissenting. Want of time prevents me, at this late day, from thoroughly discussing the opinion of the Court, and so I will merely indicate one or two of the salient points of error. The opinion apparently attempts to reconcile the testimony by excluding that of the plaintiff, and then proceeds to find as a fact that there was a break in Monk’s possession. In the opinion appear the following significant paragraphs: “It is true that Mont says, ‘After the Dodge lease was out I leased the property to Mr. Southerland for five years, and after Mr. Southerland’s lease was out I leased it to Isaac Rhodes.’ Two of his witnesses say that the locus in quo was not leased to Rhodes. It is difficult to reconcile the testimony of the plaintiff’s witnesses ivith this statement.” This Court is not called upon to reconcile the testimony of Monk with that of other witnesses, nor has it the right to say his testimony is any less worthy of credit than that of others. Monk testifies that he was in actual possession, and the jury alone can pass upon the credibility of his testimony and its relative weight as compared with that of other witnesses.

Again, the opinion of the Court places upon the evidence of Rhodes the construction most unfavorable to the plaintiff, while deciding against the plaintiff. It is true Rhodes said “I do not say I rented this seven acres,” but he evidently meant to say that he did not know whether he had a valid lease. This is shown by his further testimony that when Wright wished to rent the land to Rhodes he expressly declined to rent because he had already rented the same land from Monk. Ilis exact words as stated in the record are as follows: “I told him I thought I already had it rented; that I had rented it from Monk.” This is clearly consistent with Monk’s testimony, if the question of consistency can be considered by this Court.

This Court held, in Ruffin v. Overby, 88 N. C., 369, that “Every possession of land by one other than the claimant is deemed to be adverse until proof to the contrary is made”; that is, that the possessor is deemed to be holding under his own right. But suppose that this decision is in conflict with section 146 of The Code, that section does not profess to be conclusive. The presumption does not arise until the claimant “establishes a legal right to the premises,” and not then even if “it appears that such premises have been held and possessed adversely to such legal title.” Monk’s own testimony to facts tending to show that he was holding adversely would be sufficient to carry the case to the jury, even if he were not corroborated by others. Iiis enclosing the locus in quo with other land, admittedly his own, by a common fence, his using it for pasture, his renting it to others and paying no rent to himself, are all circumstances tending to prove that he was holding adversely.

This case was one peculiarly for the jury, and I do not think that their verdict should be disturbed, except for some material error of law in the trial, certainly not on account of any view we might have as to the weight of conflicting evidence.  