#### W. D. BOWEN et al. v. JOHN L. ROPER LUMBER COMPANY.

(Filed 19 February, 1913.)

1. Trespass — Boundaries—Declarations—Evidence.

In an action of trespass quare clausum fregit) testimony of the plaintiff as to certain lines and boundaries was objected to on the ground that it was based on information his deceased father had given him: Held,, no error, as this evidence may have been competent, as the declarations of the father had been made before any controversy had arisen; and as the witness further testified that it was on information received from his father and others, *517and was also a matter of personal knowledge, and as the land in dispute adjoined that of the plaintiff, the .evidence may have been competent under the principles announced in Halstead v. Mullen, •93 N. C., 252.

2. Trespass — Parties.

In an action of trespass qua/re elausnm fregit, only those who owned the land at the time of the trespass, and have any interest in the recovery, are the necessary parties of record.

3. Trespass — Conflicting Evidence — Verdict.

When in an action of trespass, involving title to lands, the evidence is conflicting, the findings of the jury, under a proper charge of the court, are conclusive.

Appeal from Bragaw, J., at February Term, 1913, of WASHINGTON.

Civil action for trespass, quare clausum fregit. On issues submitted, the jury rendered the following verdict:

1. Are the plaintiffs the owners of the swamp,land described in the court map as “land in controversy” within the lines of T, X, V, U, and east of the line 8, 9 ? Answer: Tes.

2. If so, did ’ defendant trespass on said lands ? Answer: Yes.

3. If so, is plaintiff’s claim for damages barred by statute, as alleged? Answer: No.

4. What damages, if any, are plaintiffs entitled to recover? Answer: $1,500.

Judgment on the verdict • for plaintiffs, and defendant excepted and appealed.

Ward & Grimes for plaintiff.

A. D. McLean, W. M. Bond,, and W. M. Bond, Jr., for de* fendant.

Per Cubiam.

The Court has carefully examined the record, and finds no exception to the proceedings which gives the defendant any just ground of complaint. The title to the land was shown to be out of the State, under a patent to Joseph Dwight, dated in 1758. See Bowen v. Lumber Co., 153 N. C., 366. Plaintiff then exhibited a line of deeds, beginning in 1786 to 1892: three to his own family and himself, bearing *518date respectively in 1821, 1847, 1892, and offered evidence tending to show that these deeds, more especially those of 1821, 1847, 1892, covered the land in controversy, and that within the boundaries on the highland the plaintiff and those under whom he claimed had lived continuously, to plaintiff’s personal knowledge, for 44 years, 60 acres being under fence and cultivated, with house, barn, stables, etc., and that they exercised such dominion and control over the swamp land within the boundary as the same permitted, and that this occupation and control were continuous and exclusive. Under a correct charge, the jury have accepted this as the true version of the facts, and the question of title, therefore, has been properly determined in plaintiff’s favor. The only objection seriously urged for error before us was that the court refused to strike out a portion of plaintiff’s testimony relevant to the issue.' The land having been surveyed and plats made and exhibited on the trial, the plaintiff, testifying in his own behalf, said, among other things, that the deeds of 1821, 1847, and 1892 covered the land in controversy, and proceeded to state more in detail as to certain lines and corners of the land, and more particularly as to the placing of the point of contact with the Ross patent, one of the termini called for in the deeds; the objection urged being that the testimony referred in part to deeds which were older than the witness, and that he testified only from what his deceased father had told him about the boundary. Under the decisions and on the facts presented, this source of information may have been entirely legitimate, fo'r it was based, in part, on a declaration of the deceased father, before any controversy and as to the boundary of the Ross patent, a tract adjoining his own, and thus may have been entirely competent under the principle illustrated and applied in Halstead v. Mullen, 93 N. C., 252; Mason v. McCormack, 85 N. C., 226, and other like cases. If, however, the contrary be conceded, the objection is not open to defendant, on the record, for the witness stated that in saying the deeds in question covered the land, he spoke from information received from his father and others, and he also said he had seen the land surveyed and knew of himself of the position of certain lines and corners *519marked and recognized as part of tbe boundary. Tbe statement of tbe witness, therefore, did not rest alone on information derived from bis deceased father, and tbe court -made a correct ruling in refusing to strike out tbe testimony. Those who owned tbe land at tbe time of tbe trespass committed and all.who have any interest in tbe recovery are parties of record, and tbe objection for defect of parties is without merit. Daniels v. R. R., 158 N. C., 418. Tbe evidence offered tending to show adverse occupation of tbe locus in quo on tbe part of tbe defendant or its grantors under tbe deed from Anne Blount, administratrix, was properly submitted to tbe jury, and rejected. Tbe issue between tbe parties dependent, chiefly, on. questions of fact, has been submitted to tbe jury under a correct and proper charge, and, as stated, we find no reason for disturbing tbe conclusion they have reached. There is

No error.-