Ramsey v. . Ramsey

49 S.E.2d 476, 229 N.C. 270, 1948 N.C. LEXIS 467

• Court: Supreme Court of North Carolina
• Decided: September 29, 1948
• Status: Published

Opinion

RAKXini.r., J.

The uncontroverted evidence locates the boundary line from the beech to a point on the ridge as contended by plaintiff and as shown on the court map. This places the triangular tract on which the spring is located within the bounds of the deeds relied on by plaintiff. Plaintiff’s line, as thus located, is the eastern line of the tract claimed by defendant under the express call in his deed. Thus defendant’s claim to this small tract must rest on proof of adverse possession for 20 years.

Whether defendant has offered any evidence of open, notorious, exclusive, and continuous adverse possession under known and visible boundary lines is questionable. The spring has been used by defendant and his predecessors in title as the source of their water supply for many years, yet he did not deny that it has been used by consent of those who own the record title. It has also been used by plaintiff, by the children at a nearby school, and the workmen at a nearby sawmill, by other persons living in the neighborhood and by those who passed along the road. Defendant himself testified that it “has been open to the public for fifty years until he (plaintiff) built that fence across the road. . . . People all along the highway use water out of that spring.” There is very little, if any, indication of adverse and exclusive possession here. Defendant used the spring more regularly and more extensively than others. Nonetheless, others used it as he did.

But there is a more vital defect in defendant’s claim—a defect which clearly discloses a want of the requisite possession for the statutory period of 20 years.

Defendant purchased and went into possession of his tract in March 1928. This action was instituted 11 December 194.1. However exclusive and adverse his possession may have been, it has not continued for the requisite period and is therefore unavailing.

It is true there is evidence tending to show that his predecessor in title used the spring as he used it. But his deed did not convey or purport to convey the spring or the triangular tract upon which it is located. The description contained in defendant’s deed does not embrace it. Hence there is no privity between him and his predecessors in title as to this land which lies outside the boundary of the land conveyed by them. Therefore, he is not permitted to tack their possession, even if adverse within the meaning of the law, to his possession so as to show adverse possession for the requisite statutory period. Boyce v. White, 227 N. C., 640; Jennings v. White, 139 N. C., 23; Blackstock v. Cole, 51 N. C., 560; Johnston v. Case, 131 N. C., 491; Barrett v. Brewer, 153 N. C., 547, 69 S. E., 614, 42 L. R. A. (N.S.), 403; Vanderbilt v. Chapman, 172 N. C., 809, 90 S. E., 993, L. R. A., 1917 C, 143; Wallace v. Bellamy, 199 N. C., 759, 155 S. E., 856; 1 A. J., 882.

“To show privity of possession, the latter occupant must enter under the prior one; must obtain his possession either by purchase or descent from him.” Barrett v. Brewer, supra, and authorities cited.

The privity necessary to warrant the tacking of the possession of successive claimants by adverse possession must be created by grant, devise, purchase, or descent. Vanderbilt v. Chapman, supra.

It follows that'defendant has failed to offer any evidence sufficient to warrant a finding that he is the owner and entitled to the possession of the triangular tract which, in the final analysis, is the only land in controversy. Hence the alleged errors committed by the court below upon which he relies are not prejudicial or harmful to him. The verdict and judgment must be sustained.

No error.