Baum v. Currituck Shooting Club

(after stating the facts). Without the aid which the presence of the plat of the surveyor and his explanations of the lines of the disputed territory might have afforded, we find it difficult to understand the matter in dispute.

Assuming, however, the identity of tire land as traced through the successive deeds, the first dated more than three fourths of a century back, and the last conveying it to Joseph Baum in January, 1844, who devises in equal parts, in the before recited clause of the will to his sons, Josephus and Jacob, the administrator of the latter of whom, in 1869, rented an undivided half part to the Shooting Club, the only inquiry is, whether the exercise of dominion over the property by the successive claimants, in the manner stated by the witnesses, was evidence to be considered by the jury •of a divesting of title out of the State and putting it in the ■said devisees.

We shall not recapitulate them, as the acts of ownership are fully set out in the testimony of the two witnesses examined, further than to say, that they seem to have been such as were proper to be passed on by the jury'. "What are acts of possession, as distinguished from trespasses repeated, which in connection with an instrument giving color of title, or so long continued as to avail without such color, have been often heretofore before the Court, and have been as well defined as perhaps the subject matter will admit. Simpson v. Blount, 3 Dev., 34; Williams v. Buchanan, 1 Ired., 535; Gudger v. Hensley, 82 N. C., 481; Staton v. Mullis, 92 N. *317C., 623. The rule is thus declared by Ruffin, J., in the case first cited: “ Exercising that dominion over the thing, and taking that use and profit which it is capable of yielding in its present state, is a possessionand Gaston, J., similarly defines a legal possession, in the second case, adding thereto-the words, “ such acts to be so repeated as to show that they are done in the character of owner, and not of an occasional trespasser.”

There was evidence approximating, if not fully meeting these required conditions, that should have been submitted to the jury, and there is error in the ruling of the Court-that there was none.

It would seem from the complaint that it was intended to-charge some interest in the defendant as a tenant in common possessing a present estate in a moiety o.f the whole land, the remainder being in the plaintiff named, but it is very insufficiently indicated in the allegation that the company have an estate in twenty-five acres, as if a severable portion to that extent. But this may be corrected and truly set out hereafter by amendment, as the point is not now before us.

The verdict must be set aside, and a new trial had.

Error. % Reversed.