#### AUGUSTUS DAWSON v. ELIAS ABBOTT.

(Filed 18 October, 1922.)

Appeal and Error — Reversible Error — limitation of Actions — hands— Adverse Possession — Boundaries—Title—Intention—Instructions.

While the mistake of tlie owner of land in using and occupying lands beyond bis fixed and established boundary line without the intention of claiming more than he has within the acknowledged confines of his deed is not such adverse possession as will ripen his title under our statutes of limitation; this principle does not apply when the owner claims a certain divisional line as his boundary, identifies it as such, and introduces evidence of his possession and claim thereto; and where such appears as the evidence in the case, with further testimony of the claimant, the plaintiff, that he had never intended to hold any land that did not belong to him, but had always claimed the locus in quo to the line he claimed as his own, as of right, it is reversible error for the Judge to charge the Jury on this testimony alone that they should find for the defendant if they should further find that the plaintiff had occupied the land beyond the boundary by mistake, and not intentionally.

Appeal by plaintiff from Lyon, J., at June Term, 1922, of LeNoib.

This is an action for land. Plaintiff claimed the land by adverse possession under color, as stated, and he testified: “I know the land described in the deed heretofore offered in evidence; it is mine; I have had possession of it and have been cultivating it for about thirty-five or forty years. My line runs, my southern line on the map, as indicated by the yellow line. I have been in possession of the land in dispute for *193forty years. There is a branch running from 3 to Mr. Wallace’s; the stump there is the corner and has been the corner ever since I bought it thirty-five or forty years ago. Running from the stump to Wallace’s land, there is a ditch, and my line runs from there in the deep branch from 3 to 4. I have been cultivating the land in dispute ever since it has been cleared, thirty-five or forty years. I took possession up to the line that I claim now thirty-five or forty years ago. The first time the defendant Abbott claimed to go beyond that dotted line was about six years ago, and he then began to claim it. The defendant Abbott rented the land in controversy from me. He paid the rent and lived in my house. I rented the land to Abbott down to the dotted line on the map, as claimed by me. No one but him ever claimed any of the land down to the dotted line; it is cultivated land and good land.”

The plaintiff was asked the following questions:

“Q. In this controversy you have not had any intention to hold any land that did not belong to you ? A. I ain’t never in my life, and I hope I never will.

“Q. You have not been intending to claim any land that did not actually belong tcyou? A. No; I always knew where the line was.

“Q. You never claimed any land that did not belong to you? A. No; only claimed what I knew to be my land.”

Plaintiff further testified: “This was all one tract before the division. All the other owners on the other side of the line always admitted this stump (corner claimed by plaintiff) to be the corner; Abbott (meaning the defendant) is the first man that raised any question about it.”

W. M. Whitley testified: “From what people say, I have known this stump (stump claimed by plaintiff) as a corner stump, and the line as claimed by Dawson as the line; the people have claimed and recognized it as the line and corner for twenty-five years. • During all these years the plaintiff, Augustus Dawson, always went up to that ditch as claimed by him and down to that stump indicated on the map. He has worked the land in dispute ever since I have known it. I knew when the defendant Abbott lived in the plaintiff’s house, and I think worked up to the stump laid down on the map. The strip in controversy has been cultivated ever since I have known it, a portion of it has been cultivated all these years, for twenty-five years, ever since I have known it.”

Collie Fisher testified: “I have known the land in controversy for thirty-five or forty years. Some years ago, I was renting it from Uncle Grus (the plaintiff); the line then was as contended for by him now; I tended it two years, which was eight or ten years ago. Elias Abbott, the defendant, cultivated all of it; I suppose he rented the entire place from the plaintiff.”

*194Augustus Rouse testified: “I know tbe strip of land in controversy. Augustus Dawson (tbe plaintiff) bas been in possession of tbat land; be bas been tending it for twenty or twenty-five years; no one claimed to tbe contrary along tben; I never saw any one wbo lived on tbe other side try to go across tbe line as claimed by tbe plaintiff.”

Tbe defendant, Elias Abbott, testified: “I rented tbis tract of land from Uncle Grus (tbe plaintiff), about six years ago. I bave been in possession of tbe land in dispute now tbis makes three years. There is a ditch part of tbe way on tbe line, as claimed by tbe plaintiff, toward Wallace’s land. Uncle Gfus (tbe plaintiff) was cultivating tbat all these years up to tbe ditch. I began to claim across tbe ditch only three years ago. If tbe court should allow my contention, it would give me land tbat I know tbe plaintiff bas been cultivating for a number of years. As tenant of tbe plaintiff, I held up to tbat ditch, tbe line claimed by plaintiff.”

Jeff Arnold, for tbe defendant, testified: “My father owned tbe property in question. Tbe dividing line between us and tbe Dawson line was a stump there (witness indicating tbe stump claimed by tbe plaintiff to be the corner), and a rod was up there at tbat time. Tbe plaintiff took in all of tbis tract of land at one time.”

The court charged tbe jury, among other things, as follows: “Adverse possession, gentlemen of tbe jury, is such a possession as notifies tbe true owner and tbe world tbat the party in possession is in adverse possession, bolding same as bis own, so as to enable tbe true owner, if there be one other than himself, to bring an action. (If a man is mistaken as to where bis line is, and gets over tbe line through mistake, and bolds it thinking it is bis own when in truth it is not, but without intending to claim beyond tbe true line, tbat would not be adverse possession.)”

. Defendant excepted to tbe portion of 'this instruction which is in parentheses, and assigned tbe same as error.

Yerdict and judgment for tbe defendant; plaintiff excepted, and appealed.

Rouse & Rouse for plaintiff.

Sutton & Greene for defendant.

WaliíeR, J.

We bave stated so much of tbe evidence as bears upon tbe question raised by tbe plaintiff, wbo it appears was claiming tbis land under a deed and adverse possession extending over many years— as much as twenty-five or thirty. The special exception taken by tbe plaintiff to tbe charge of tbe court is tbat relating to a bolding of tbe land by mistake, tbe particular instruction being tbis: “If a man is *195mistaken as to where his line is, and gets over the line through mistake, and holds it thinking it is his own when in truth it is not, but without intending to claim beyond the true line, that would not be adverse possession.”

This instruction was erroneous in view of the evidence and the contentions of the plaintiff, and was seriously prejudicial to him if it did not turn the scales against him, even if the instruction in itself was correct. The plaintiff did not admit or concede that he ever claimed the land by mistake, and held it thinking it was his own when in truth it was not, and without intending to claim it. The evidence is directly contrary to such a construction of it. Plaintiff claimed the land as his own, without having any doubt about his right and just claim to it, while the charge of the court assumed, or strongly implied, that he was not holding the land adversely, but because of a mistake as to the lines, and that he did not intend to claim land not his own. But this last expression is very far from stating the true contention. Plaintiff did say while testifying that he did not intend to claim any land not rightfully belonging to him, but he added, very distinctly and firmly, and without the slightest equivocation, that he had not done so, but only claimed what he knew to be his land. The charge of the court was obviously calculated, though not, of course, intended, to place a wrong meaning upon what the plaintiff had said, and to produce the impression upon the jury that plaintiff was claiming the land by mistake, and not adversely and of right. • The plaintiff had consistently, in the beginning and throughout the case, insisted strenuously that there was no mistake about it, but that he had asserted his title to the land, and his long adverse possession of it by actually occupying it and cultivating it, and using it in other ways to which it was adapted, and this was done for many years, far more than a sufficient time to ripen his title, and there was nothing to justify the court in presenting to the jury a view of the case which implied that plaintiff's possession and claim were asserted by mistake, and therefore not adverse.

It is said in 1 Cyc., at pp. 1036-1038: “A few decisions hold without qualification that one who, through a misapprehension as to the boundaries of his land, occupies and possesses land of another for the statutory period, thereby acquires title by adverse possession to such lands. Nevertheless, according to the great weight of authority, where the occupation of the land is by a mere mistake, and with no intention on the part of the occupant to claim as his own land which does not belong to him, but he intends to claim only to the true line, wherever it may be, the holding is not adverse. In cases of mistake as to the true line between adjoining lands, the real test as to whether or not a title will be acquired by a holding for the period prescribed by'the statute of limitations is the *196intention of the party holding beyond the true line. It is not "merely the existence of a mistake, but the presence or absence of the requisite intention to claim title, that fixes the character of the entry and determines the question of disseizin. There must be an intention to claim title to all land within a certain boundary, whether it eventually be the correct one or not. Where a person, acting under a mistake as to the true boundary line between his.land and that of another, takes possession of land of another, believing it to be his own, up to a mistaken line, claiming title to it and so holding, the holding is adverse, and, if continued for the requisite period, will give title by adverse possession.”' Applying these principles correctly to the case, the error of the court is apparent.

In Mode v. Long, 64 N. C., 433, it was held: “Where one or two-coterminous proprietors of land cleared and fenced up to a line of marked trees, believing that to be the dividing line, whereas it was at some points as much as twenty-five yards over upon his neighbor’s land r Held, that such act constituted an open and notorious adverse possession up to the marked line, and rendered a deed made by the neighbor during such possession, for that part, void.” Chief Justice Pearson said in the body of the opinion: “In our case, clearing and fencing a field up to a line of marked trees, was certainly an open and notorious act, and the mistake was not in attempting to set a fence with a line, but in asserting another and a different line to be the true one, and making it necessary to have a lawsuit in order to show the mistake and establish the true line. Here the mistake was in regard to which of two lines was the true line of ‘Smart’s grant,’ called for in the deeds of both parties; that depended on a question of law. There the mistake was in running the worm of a fence exactly with a straight line; a mistake as to matter of fact, from inadvertence, and with no intention to assert a claim. So note the diversity.” The Mode case, supra, controls, except that this is stronger for the plaintiff’s right to recover than was the Mode case. Here there was no mistake by the plaintiff, because he claimed up to the line which he asserted, all the time, to he the true one. When he said that he would not claim land that did not belong to him, he did not mean that he was doing such a thing, but only claiming that which was his. Even if there had been a mistake originally as to the location of the true line,, yet if the plaintiff asserted it to be at a certain place and occupied and claimed up to it in his own right, although he may have been mistaken as to where the true line was, his possession would still be adverse. It was held in Williams v. Harrell, 43 N. C., 125: “The fact that the-adverse possession has commenced and continued under a mistake as to-the rights of the parties is not an" avoidance of its legal effect.”

*197Tbe land in dispute contains about fourteen acres, but it is of great value to tbe plaintiff, and tbe controversy involves an important principle. Tbe defendant bad leased tbe land from tbe plaintiff, thereby acknowledging bis title, and be must bave known that plaintiff bad claimed and occupied tbe land adversely for twenty-five or tbirty-five years.

Tbe cross-examination of tbe plaintiff as to tbe supposed mistake tended to prejudice bim unduly; and to aid greatly in emphasizing tbe error committed at tbe trial, Tbe plaintiff was asserting tbe justness, fairness, and righteousness of bis claim, and bad bis earnest and honest statement of it, inadvertently, of course, but nevertheless strongly, turned to bis disadvantage.

We are satisfied that it was tbe erroneous instruction of tbe court as to tbe alleged mistake which misled tbe jury and caused them to decide with tbe defendant upon a wrong impression of tbe case, and for this error plaintiff is entitled to another trial.

New trial.