Opinion
(December Term, 1860.)
In trespass q. c. f., the principle that where neither party has possession of a lappage the superior title draws to it the constructive possession and excludes the constructive possession of the inferior title, may be asserted by one who is a stranger to such superior title, against the suit of one claiming under the inferior title.
TRESPASS, q. c. f., tried before French, J., at last Fall Term of HARNETT.
No counsel for plaintiffs.
Strange and Neill McKay for defendants.
The plaintiffs claimed title to the land in dispute, under a grant to one Morrison, and by him conveyed to their ancestor. So much of the
, SEE 53 N.C. 29.]
claim as is necessary to the understanding of this case is represented by the lines A, B, C, D, E, F, X, Y, Z, 1, 2. They occupied that portion of this area which was southwest of the line D, 2 (see diagram), but whether their occupancy embraced the locus in quo (39) was a question.
The defendants, for the purpose of showing title out of the plaintiff, offered in evidence a grant to John Gray Blount, of older date than that under which the plaintiffs claimed, which covered a large space of country, including, as they insisted, that portion of plaintiff's claim lying northeast of the line D 2, including the locus in quo.
The court charged the jury if the plaintiffs were not in possession at the time of the alleged trespass, they must rely upon the constructive possession which arises from the title, and they had shown title; and if they had also satisfied them of the trespass being committed on the Morrison grant by the defendants, or any of them, within three years before the commencement of the suit, the plaintiffs were entitled to recover, unless the defendants had so located the Blount grant as to cover the land on which the trespass had been committed, and that in this event it was not necessary that the defendants should connect themselves with the Blount grant; that it was sufficient to show title out of the State, older than the grant to the plaintiffs, for this takes away their constructive possession. The court further instructed the jury, that if the plaintiffs were in actual possession at the time of the alleged trespass above the line D, 2, and they were satisfied from the evidence that the trespass was committed by the defendants, or any one of them, on any portion of the tract within three years, it made no difference whether the Blount grant is so located as to cover the Morrison tract or not, for the reason that the defendants' have not connected themselves with the Blount grant. The defendants' counsel excepted.
The defendants' counsel asked the court to instruct the jury, that if they should be satisfied that the Blount grant was located as contended by the defendants, and the plaintiffs had no possession of the lappage, but that their only possession was below the line D, 2, and that the trespass, if any, was upon the land covered by the Blount grant above the line D, 2, that the plaintiff could not recover. The court declined giving the instruction; but told the jury that if the Blount grant (40) was located as contended by the defendants, and the trespass, if any, was committed upon the land covered by the Blount grant above the line D, 2; then, if at the time of said trespass the plaintiffs had no possession above the line D, 2, upon the lappage, but that their only possession was upon that part of the grant below the line D, 2, which would not be upon the lappage, the plaintiffs would be entitled to their verdict, as the defendants had not connected themselves with the Blount grant. Defendant excepted.
Verdict for the plaintiff. Judgment and appeal by the defendant.
We think there was an error on the part of the court below in refusing the instructions asked for. The action of trespass quare clausum fregit is a possessory action and only be maintained by one who has possession, either actual or constructive; and the inquiry, therefore, as to who had the possession of the locus in quo is material, and happens in this case to be the turning point. In the case of lapping grants, when neither proprietor is in actual possession of the part common to both, the constructive possession of that part is with the superior title. Actual possession (the pedis positio of the law) by one who has the inferior title, outside of the part that is common, however extended his claim or long continued as to time, will not diminish the strength of the superior title. The reason is: Such a possession does not expose the party to the other's action, or afford him an opportunity of asserting at law the superiority of his title. The parties consequently remain unaffected as to their respective rights in the part common to both the grants as long as they remain in this condition; and as to possession, he has it by construction who has the superior title. But if the party with the inferior title take possession anywhere in the part that is common, such possession is held coextensive with the entire part, and in such case the constructive possession which follows the better title is repelled, and the law adjudges him who has the pedis positio (41) to be in exclusive possession, for the reason that wherever he may have planted himself in the disputed part, he is alike exposed to the action of the adverse claimant; and therefore his possession should be held, in accordance with the general principle, commensurate with his claim. Williams v. Buchanan, 23 N.C. 535; Baker v. McDonald, 47 N.C. 244; McMillan v. Turner, 52 N.C. 435. These rules of law present and explain the apparent inconsistency, that while in the present condition of the respective claimants to these grants the possession is construed to be in the heirs of Blount, yet if their grant had covered more of the plaintiff's land, i. e., had extended south of the line D, 2, so as to embrace the actual possession of the plaintiff, the possession of the whole lap would have been in the plaintiff. In the former case the plaintiffs could not maintain this action, in the latter they could.
The principles here laid down were fully recognized by his Honor below in the first part of his instructions to the jury, but in the latter part he seems to hold them inapplicable to the trespass of a stranger or mere wrong-doer. We are not aware of such an exception. This action cannot be maintained by one who has neither the actual nor constructive possession of the locus in quo, against an intermeddler. There must be a
PER CURIAM. Venire de novo.
Cited: Kitchen v. Wilson, 80 N.C. 197; Simmons v. Box Co., 153 N.C. 262.
(42)