#### DEN EX DEM. DAVID G. FLANNIKEN vs. DAVID LEE.

In this action of ejectment, the only question was as to whether the defendant was in possession of the premises at the time of the institution of the suit. It appeared that several years before the suit commenced'the defendant had possessed a building, which was intersected by the line between him and the lessor of the plaintiff. The buijding had two rooms, one of which was a corn-crib, which was on the land of the lessor of the plaintiff, and which, having an outer door, was kept locked by the defendant, who was requested, but refused, to remove tha building to his own side of the line. Held that under these circumstances, if the defendant, at the time the action was brought, kept the crib locked up, this was such a possession by him as warranted the plaintiff’s action.

It is the duty of the appellant to the Supreme Court to see the pase so made out as distinctly to present the points upon which the judgment below is sought to be reviewed.

This was an action of Ejectment, tried at Spring Term, *2941839, before Nash, Judge, when there was a verdict for the P^11^ under the charge of the Court, a new trial moved for and refused, judgment for the plaintiff and an appeal to the Supreme Court. The facts, so far as they regard the point submitted to this Court, are .stated in the opinion delivered.

Hoke and Saunders for the plaintiff

Alexander and Barringer for the defendant.

Gaston, Judge.

This was an action,of Ejectment. There was a verdict for the plaintiff, and a judgment accordingly, and the defendant appealed to this Court. Upon the trial of the cause, it was much controverted whether the dividing line between the lessor of the plaintiff and the defendant ran north sixty-four degrees east, or north sixty-one east. If the former were the true course, it was admitted that the plaintiff was entitled to a verdict. But if the latter were the true course, then the right of the plaintiff depended upon the fact whether the defendant, at the institution of the action, was in possession on the plaintiff’s side of the line. No objection. has been taken to the correctness of the instructions given to the jury in relation to the first question, but it is insisted that the instructions upon the second were erroneous.

From the case stated, We collect the circumstances, bearing upon the question of possession, to be these: Several years before the institution of the suit, the defendant had possessed, as a part ofhis homestead, a certain building which is intersected by the line No. 61 east. It was a building with two apartments, one of which he had used as a cotton house, and the other as a corn-crib. There was a partition between the two rooms, and each had an external door. While the defendant was thus in possession, a Mr. Chambers purchased the land of the lessor of the plaintiff, but did not perfect his legal title thereto. The apartment called the corn-crib then actually contained the defendant’s corn, and was kept locked by him, but the other aparment was empty and the door unfastened. The defendant asked and obtained *295permission from Chambers to continue the possession of the crib, until the corn then in it should be all used. This was accordingly done,' and afterwards Chambers required of the defendant to remove the building unto the defendant’s side of the line. The defendant refused to do so, and some time afterwards the action was brought. The Judge’s instruction to the jury was, that if the crib was on the plaintiff’s side of the line, and the defendant, when the action was brought, kept the sam'e'locked Up, this was such a possession by him, as warranted the plaintiff’s action. In this instruction we do not see any error. The requisition on the defendant to remove the building unto his side of the line, was at once a manifestation that Chambers, then representing the lessor of the plaintiff, regarded it authe defendant’s building, and also a notification that possession by him over the line was no longer to be allowed.- If the defendant had refused upon the ground that he disclaimed ownership of the building or of that part of the building not within his own limits, the case we presume would have so stated. But a general refusal, accompanied by the subsequent exercise of dominion, can be reasonably regarded in no' other light than as claiming the building, and claiming that it should remain where it stood. One of the usual modes of manifesting occupation of a house, is by the keeping of its keys; and occupation under a claim of right is possession.

We admit that the caséis not so distinctly stated, that we can be quite sure that we do not misunderstand some of its circumstances. In one part of it the entire building is called a crib, and- in other parts the designation is confined to the room wher-ein- corn was kept, and thereby some ambiguity is necessarily created. If by reason of this ambiguity, we have been led into any misapprehension, it is the misfortune Or fault of the appellant, whose duty it is to see the case so made out as distinctly to present the points upon which the judgment .below is sought to be reviewed.- Until we see error in the judgment we presume it right.- ■ The judgment of the Superior Court is affirmed with costs.-

Per Curiam. Judgment accordingly.