McPherson v. . Williams

170 S.E. 662, 205 N.C. 177, 1933 N.C. LEXIS 493

Opinion

Stacy, C. J.

It is conceded in appellee’s brief that “the burden was upon the defendant to show the easement by prescription, or adverse possession,” the defense being an affirmative one. Power Co. v. Taylor, 194 N. C., 231, 139 S. E., 381. But in this connection it is asserted that “while in disconnected excerpts, it might appear the burden of proof was improperly placed, yet a careful reading of the entire charge will show the jury could not have been misled.” Bechtel v. Weaver, 202 N. C., 856, 164 S. E., 338; Rankin v. Oates, 183 N. C., 517, 112 S. E., 32.

We have held in a number of cases that the erroneous placing of the burden of proof in respect to a material matter constitutes reversible error. Power Co. v. Taylor, supra.

True, in the beginning, the plaintiffs had the burden of proof on the issue of trespass, but when the defendant undertook to justify his use of the plaintiffs’ side of the ditch by prescription, or adverse possession, he then assumed the laboring oar. Hayes v. Cotton, 201 N. C., 369, 160 S. E., 453.

New trial.