#### WILSON LUMBER AND MILLING COMPANY v. H. D. L. CLARKE and D. B. KIRBY.

(Filed 11 May, 1910.)

State’s Lands — Right of Protest — Interest or Title — Description— Locus in Quo — Grant to a Stranger — Evidence.

The right of one to protest an entry of State’s land depends upon a claim by the protestant of title to, or an interest in, the land covered by the entry; and when he sets up his title and confines it to the lands described in the grant under which he *545claims, which the protestee admits, but contends that it does npt cover the loans in quo, the protestant may not put in evidence a grant to another covering the lands outside of his grant, under which he claims no interest or title, for the pinpose of disproving the protestee’s right to enter the land not claimed by protestant.

Appeal from Councill, J., at November Term, 1909, of Caldwell.

Tbis is a proceeding under tbe entry laws. Tbis issue was submitted:

1. Is tbe land described on tbe map as tbe Clarke & Kirby entry, vacant and subject to entry? Answer: Yes. ■

Tbe court rendered judgment for Clarke & Kirby, tbe entrants, from wbicb tbe protestant, tbe Wilson Lumber Company, appealed.

M. N. Harshaw and Mark Squires for defendant, entrants.

J ones & Whisnant for plaintiff, protestant.

Brown, J.

Tbe record discloses tbat Clarke & Kirby on 25 April, 1908, made entry in due form of certain alleged vacant lands described in tbe boundaries set out in tbe entry. On 23 May, 1908, tbe Wilson Lumber Company filed witb tbe entry taker a protest, protesting tbe entry “for tbe reason tbat tbe above boundary of land is not subject to entry, having heretofore been granted to William Puett by tbe State, and by mesne conveyances conveyed to tbe protestant, tbe Wilson Lumber and Milling Company, and tbe said above-described land is now owned by tbe said Wilson Lumber and Milling Company.”

On tbe trial tbe claimant, or protestee, as called in tbe record, offered in evidence their entry, No. 6695; also, grant 865 to William Puett, dated 6 June, 1874, for 193 acres; also, grant 994 to William Puett, dated 2 February, 1882; also, deed from Gordon Morrow to W. M. Puett, dated 21 June, 1883.

Here tbe protestees admitted tbat tbe protestant Wilson Lumber and Milling Company is tbe owner, through mesne conveyances, of tbe lands embraced in'grants Nos. 865 and 994 to William Puett.

There was evidence on tbe part of both protestant and pro-testees as to tbe correct location of grant No. 865, as shown by court map — The yellow lines representing protestees’ claim, and tbe blue lines tbe protestant’s claims.

Tbe whole contest turned upon tbe location of tbe grant 865. Tbe jury located it according to tbe contention of tbe protestees or claimants.

*546• -The protestant offered in evidence grant No. 12222 to W. H. Barlow, but disclaimed any interest in tbe land covered by it. Tbe court excluded it, and protestant excepted. Tbis is tbe only assignment of error discussed in tbe briefs.

We sustain tbe ruling of tbe court, for two reasons:

1. Tbe protestant confined tbe protest to tbe allegation tbat tbe boundary included tbe grants to William Puett, wbicb protestant owned. Tbe ownership of tbe Puett grants was admitted by tbe entrants, but upon locating one of tbe Puett grafits, it was determined by tbe jury tbat tbe lands claimed in tbe entry were not covered by it. Tbe protestant claimed no other interest in tbe entry.

' 2. Tbe protestant, on tbe trial, disclaimed all interest in tbe Barlow grant. Tbe statute giving right to file a protest provides: “If any person shall claim title to or an interest in tbe land covered by tbe entry, or any part thereof, be shall, within "the time of advertisement as above provided, file bis protest in writing.”

Tbe right to file tbe protest is made dependent upon a claim of title to, or an interest in, tbe lands covered by tbe entry.

Tbe protestant comes into court defining tbe interest claimed as being under a grant to W. M. Puett, or William Puett.

Tbat is conceded to protestant by the entrants, but in locating tbe Puett grants tbe entrant has satisfied tbe jury tbat there are other lands within tbe boundary of bis entry than those.

■ As no one else has filed a protest except tbe Wilson Lumber Company, wbicb disclaimed all interest in any other except tbe Puett grants, we think bis Honor properly excluded tbe Barlow grant. So far as tbat grant is concerned, tbe Wilson Lumber Company is an officious intermeddler. Its existence gave tbe Wilson Lumber Company no ground for protest and no standing in court.

There is nothing in tbe case of Walker v. Carpenter, 144 N. C., 677, wbicb bolds tbat any person claiming no interest in an entry can successfully protest it. If tbe owners of tbe Barlow grant did not see fit to protest, we .see no reason why tbe Wilson Lumber Company can do it for them.

No error.