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Cross v. Seaboard Air Line Railway Co.

90 S.E. 14, 172 N.C. 119, 1916 N.C. LEXIS 247
CourtSupreme Court of North Carolina
DecidedOctober 4, 1916
StatusPublished
Cited by3 cases

This text of 90 S.E. 14 (Cross v. Seaboard Air Line Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cross v. Seaboard Air Line Railway Co., 90 S.E. 14, 172 N.C. 119, 1916 N.C. LEXIS 247 (N.C. 1916).

Opinion

Walker, J.

The action was brought to recover a parcel of land in the town of Sanford outside of the defendant’s right of way, and designated on the map filed in this Court with the record by the figures 1, 3, 4, and 5. It seems that the parties claimed from a common source of title, John W. Scott, and defendant also claimed the land by adverse possession for twenty years; and upon this branch of the ease the court charged the jury as follows: “Adverse possession must be continuous. There must not be any break at all — no moment of time when the land is not occupied; but it must be an intention to take possession, and the possession must be such as to notify the public, generally, and the owners themselves, who claim title, that there is an adverse possession; and if you find that the defendant has had such possession as this, it would be your duty to answer the first issue No’ and the second issue ‘Yes.’ ”

This instruction was erroneous, as we have often decided that the possession may be adverse for the required period without being unceasing. Referring to adverse possession in Berry v. McPherson, 153 N. C., 4, Justice Brown says: “This 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, and that during it the claimant has from time to time continuously subjected some portion of the disputed land to the only use of which it was susceptible. Ruffin v. Overby, 105 N. C., 83; McLean v. Smith, 106 N. C., 172; Hamilton v. Icard, 114 N. C., 532. While the evidence offered is not necessarily conclusive, if taken to be true, as to the fact of possession, we think it sufficient to be submitted to the jury, under appropriate instructions, that they may draw such inference as they see proper, bearing in mind that the burden of proof is o'n the plaintiff to establish the fact of possession for the statutory period by a preponderance in

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Cite This Page — Counsel Stack

Bluebook (online)
90 S.E. 14, 172 N.C. 119, 1916 N.C. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cross-v-seaboard-air-line-railway-co-nc-1916.