#### W. E. CAMPBELL v. A. MILLER.

(Filed 18 February, 1914.)

1. Limitations of Actions — Adverse Possession — Color of'Title.

One who cuts wood upon the lands in dispute at several separate times, without title, is a trespasser upon the lands, and evidence of this character is insufficient to ripen title as adverse possession without “color.”

2. Same — Instructions—Appeal and Error — Harmless Error.

In an action to recover lands contained in the lappage of disputed division lines between adjoining owners which one of them claims under seven years adverse possession under “color of title,” his prayer is properly refused which leaves out the words “color of title,” seven years without “color” being insuffi-cent; but had the prayer been correct, its refusal by the court is rendered harmless in this case, by the location of the line by the jury in accordance with the contention of his adverse claimant.'

*523. Deeds and Conveyances — Lines and Boundaries — Estoppel.

For an adjoining owner to be estopped from claiming the true divisional line of bis lands, it is necessary for tbe party setting up tbe estoppel to sbow tbat be purchased tbe lands from bim, and tbat there was a contemporaneous running and marking of tbe line; and it is insufficient tbat be only pointed out tbe wrong line at tbe time of purchase from another.

Appeal by defendant from Bragaw, J., at September Term, 1913, of Beaufort.

Small, McLean & Bryom for plaintiff.

M. G. Tooley, W. B. Rodman, Jr., Rodman ■& Bonner 'for defendant.

Clark, C. J.

Tbe principal controversy is as to tbe location of tbe line between tbe plaintiff and. tbe defendant, known as tbe Ohester-Winfield line, there being no serious dispute about tbe title. Plaintiff owns part of tbe Sattertbwaite land, tbe deed for wbicbo calls for tbe 'Winfield line, and tbe defendant owns part of tbe Winfield land. Botb parties claim under W. J. Bullock, wbo formerly owned botb tracts or parts of them. In 1892 Dr. Bullock conveyed to Mrs. Addie Wentz, under wbom defendant claims, an interest in tbe tract of land known as tbe Chester-Winfield land adjoining tbe Edward Sat-tertbwaite land and others, and in 1902 Bullock conveyed to plaintiff certain parts ofi tbe Edward Sattertbwaite land, calling for tbe Ohester-Winfield line as its boundary. On 8 Deeem-ber, 1904, Mrs. Wentz conveyed to defendant, and this suit was begun 3 May, 1911, being less than seven years after'defendant purchased.

Tbe court told tbe jury in effect tbat tbe Ohester-Winfield line was tbe only one necessary to • be located. There was no other line common to, or in dispute between, plaintiff and defendant, and by referring to tbe deed from Davis to Winfield it will be seen tbat no other, call serves to aid, much less to control, tbe location of tbat line.

Tbe chief controversy on tbe part.of tbe defendant, wbo is appellant, is tbat even if tbe line was correctly located, be and *53Mrs. Wentz, under whom be claims, have beld seven years possession of tbe lappage or locus in quo. He bought in 1904 wben tbe land was in woods. He. testified tbat wben be bought tbe land McGowan bad been cutting timber off of it, and it bad no timber wben be bought it.' He said tbat be bad been working it continuously ever since. McGowan testified as a witness1 tbat be was Mrs. Lentz’s agent and looked after tbe land for her; tbat she first took possession in 1901; tbat in January, 1903, be cut some wood on tbe land for her and hauled it in 1904 up to tbe time that defendant Miller bought; thát there was no merchantable timber on tbe land; tbat be cut some wood off tbe land in 1903 and hauled it to Belhaven to tbe hotel, and in 1904 be got some for bis personal use. He said on cross-examination: “When I said I bad possession of tbe land for Mrs. Wentz, I meant tbat I went on it and cut some wood which I hauled off.” This cannot be said to be possession, but amounts simply to a trespass, unless Mrs. Wentz bad title to tbe land. Cox v. Ward, 107 N. C., 512; Vanderbilt v. Johnson, 141 N. C., 370. Tbe court properly refused to charge: “If tbe defendant and those under whom be claims have bad possession of tbe land in dispute for a period of seven years under known and visible boundaries, and said possession was continuous, and tbe land was used in such manner as it -was then capable of,” to answer tbe first issue, as to tbe location of tbe line, as claimed by tbe defendant, for tbe prayer omits tbe words “under color of title.” Besides, tbe defendant bad no color for tbe locus in quo if tbe Chester Winfield line is located where plaintiff claims and tbe jury found it. Seven years possession without color is not sufficient.

Tbe defendant contends tbat tbe plaintiff pointed out tbe line at tbe timé tbe defendant purchased, and, therefore, tbe plaintiff having misled tbe defendant, was estopped to set up 'the true boundary. Tbe issue as to this was found by tbe jury in favor of tbe plaintiff, and tbe charge of tbe court' was as favorable, to tbe defendant as be could ask, for be did not. purchase from or claim under tbe plaintiff, and there was no contemporaneous running and marking. Caraway v. Chancy, 51 N. C., 361. Tbe *54court seems to have followed, in tbe charge, tbe ruling in Boddie v. Bond, 154 N. C., 359, and tbe jury found tbat there was no misrepresentation on tbe part of tbe plaintiff.

Tbe other exceptions do not require discussion.

No error.