{ "id": 8603405, "name": "CHARLES W. GIBSON et al. v. PERCY JANE DUDLEY et al.", "name_abbreviation": "Gibson v. Dudley", "decision_date": "1951-02-28", "docket_number": "", "first_page": "255", "last_page": "259", "citations": [ { "type": "official", "cite": "233 N.C. 255" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "97 A.L.R. 26", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "29 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693105 ], "opinion_index": 0, "case_paths": [ "/nc/29/0310-01" ] }, { "cite": "94 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "88 S.E. 862", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271357 ], "opinion_index": 0, "case_paths": [ "/nc/171/0543-01" ] }, { "cite": "92 S.E. 692", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "173 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271802 ], "opinion_index": 0, "case_paths": [ "/nc/173/0689-01" ] }, { "cite": "93 S.E. 950", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "174 N.C. 808", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255971 ], "opinion_index": 0, "case_paths": [ "/nc/174/0808-01" ] }, { "cite": "114 S.E. 15", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "184 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269712 ], "opinion_index": 0, "case_paths": [ "/nc/184/0192-01" ] }, { "cite": "133 S.E. 2", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631385 ], "opinion_index": 0, "case_paths": [ "/nc/191/0747-01" ] }, { "cite": "3 S.E. 2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 768", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632074 ], "opinion_index": 0, "case_paths": [ "/nc/215/0768-01" ] }, { "cite": "191 S.E. 353", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628228 ], "opinion_index": 0, "case_paths": [ "/nc/211/0591-01" ] }, { "cite": "46 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681100 ], "opinion_index": 0, "case_paths": [ "/nc/46/0039-01" ] }, { "cite": "46 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681026 ], "opinion_index": 0, "case_paths": [ "/nc/46/0023-01" ] }, { "cite": "75 S.E. 721", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "159 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659678 ], "opinion_index": 0, "case_paths": [ "/nc/159/0497-01" ] }, { "cite": "44 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276983 ], "opinion_index": 0, "case_paths": [ "/nc/44/0449-01" ] }, { "cite": "79 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694198 ], "opinion_index": 0, "case_paths": [ "/nc/79/0480-01" ] }, { "cite": "48 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "86 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274207 ], "opinion_index": 0, "case_paths": [ "/nc/86/0397-01" ] }, { "cite": "79 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696368 ], "opinion_index": 0, "case_paths": [ "/nc/79/0539-01" ] }, { "cite": "94 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651043 ], "opinion_index": 0, "case_paths": [ "/nc/94/0344-01" ] }, { "cite": "94 S.E. 703", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "175 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656681 ], "opinion_index": 0, "case_paths": [ "/nc/175/0011-01" ] }, { "cite": "15 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275901 ], "opinion_index": 0, "case_paths": [ "/nc/15/0158-01" ] }, { "cite": "26 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692643 ], "opinion_index": 0, "case_paths": [ "/nc/26/0310-01" ] } ], "analysis": { "cardinality": 554, "char_count": 9687, "ocr_confidence": 0.492, "pagerank": { "raw": 2.990123292842953e-07, "percentile": 0.8516459839936614 }, "sha256": "9c3ce40cb9e1e716100ae994d6f21f20058f1744c6b3b31b3d769808792d5b90", "simhash": "1:0b16d6b08afc07d1", "word_count": 1700 }, "last_updated": "2023-07-14T21:52:46.396528+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES W. GIBSON et al. v. PERCY JANE DUDLEY et al." ], "opinions": [ { "text": "Stacy, C. J.\nThe question for decision is whether the evidence, taken\nin its most favorable light for the plaintiff, survives the demurrer and carries the case to the jury. The trial court answered in the negative, and we approve.\nThe vital question is the character of plaintiff\u2019s possession of the triangular strip of the driveway embraced in defendant\u2019s deed prior to 1948, whether permissive or adverse. The law presumes it was permissive. He does not say it was adverse.\nThe plaintiff purchased and went into possession of his lot in 1924. He thought his deed covered the whole of the driveway, including the locus in quo. \u201cI thought all the time it was my property.\u201d Not until 1948, when the defendant purchased the adjoining lot and had it surveyed, did he learn otherwise. He then had a conversation with the defendant about his encroachment on the defendant\u2019s lot. \u201cI asked Mr. Dudley what he was going to do about letting me continue to use the driveway. He told me, we suggested we\u2019d have a joint driveway.\u201d The plaintiff then went to his lawyer and asked him \u201cto fix up papers to make it a joint driveway permanently.\u201d Instead, a few days later the lawyer notified the defendant by letter that the plaintiff was claiming title to the whole of the driveway. The plaintiff says, \u201cI did not ask Mr. Elledge to write a letter to Mr. Dudley; Mr. Elledge wrote the letter; I never saw the letter.\u201d\nThe plaintiff further testified that the triangular strip in question \u201cis not covered by my deed. I thought all the time it was my property. . . . I am claiming the old established driveway that was there when I bought the property, . . . and I have continued to use it since then. I thought all the time it was mine. ... I am claiming by adverse possession by use by reason of my driveway. ... I have used the property for a driveway and also to store my coal in the basement since I bought the property 24 years ago.\u201d\nNote, the plaintiff says he is now claiming the small strip in question by adverse possession, but nowhere does he say his claim prior to 1948 was other than under his deed, which admittedly does not cover the locus in quo, while the defendant\u2019s deed does. Certainly he was not claiming it as against the true owner when he first discovered the error and went to see the defendant and then his own lawyer about fixing up papers to make it a joint driveway. Prior to this time, \u201che did not intend to usurp a possession beyond the boundaries to which he had a good title.\u201d Bynum v. Carter, 26 N.C. 310. When he first went into possession he was claiming, and intended to claim, only that which he had purchased, and there was no occasion for any change in his purpose prior to the discovery that he was encroaching on defendant\u2019s lot. No hostile occupancy occurred up to this time as the plaintiff thought his deed covered the entire driveway. His claim then was not one of adverse possession but one of rightful ownership. If his possession! were exclusive, open and notorious, as he now contends, no one regarded it as hostile or adverse, not even the plaintiff himself, for he was not conscious of using his neighbor\u2019s land. \"I thought all the time it was mine.\u201d These conclusions are impelled by the plaintiff\u2019s own testimony.\nThe observations of Ruffin, C. J., in Green v. Harman, 15 N.C. 158, appear apropos: \u201cIf indeed, two persons own adjoining lands, and one runs a fence so near the line as to induce the jury to believe that any slight encroachments were inadvertently made, and that it was the design to run on the line, the possession constituted by the enclosure might be regarded as permissive, and could not be treated as adverse, even for the land within the fence, except as it furnished evidence of the line in a case of disputed boundary.\u201d No boundary dispute exists here, since admittedly the defendant\u2019s deed covers the locus in quo., and the plaintiff\u2019s deed does not.\nAgain in Vanderbilt v. Chapman, 175 N.C. 11, 94 S.E. 703, Allen, J., says: \u201c. . . every possession of land is presumed to be under the true title . . . and if the possession is by mistake or is equivocal in character, and not with the intent to claim against the true owner, it is not adverse.\u201d Accordant, King v. Wells, 94 N.C. 344; Boyden v. Achenbach, 79 N.C. 539; S. c., 86 N.C. 397; Ray v. Lipscomb, 48 N.C. 186. \u201cIt is the occupation with an intent to claim, against the true owner, which renders the entry and possession adverse.\u201d Parker v. Banks, 79 N.C. 480.\nBulge the plaintiff\u2019s testimony as we may, it hardly seems capable of being stretched to a claim of adverse possession prior to the letter of plaintiff\u2019s counsel in 1948. Even then the plaintiff is cast in a role he did not know he was taking. The law never presumes a wrong; quite the reverse; it does not ascribe one\u2019s act to covetousness when all the evidence points only to an inadvertence. Indeed, the plaintiff\u2019s daughter says, \u201cWe assumed it was ours.\u201d It would be strange if one who enters permissively upon the premises of another could camouflage his intention to claim adversely for twenty years, then turn upon the owner and say, \u201cI now have the better title by reason of my possession, and I will disregard your indulgence and assert a right to all you have allowed me to occupy.\u201d Bryson v. Slagle, 44 N.C. 449. Fortunately, the law is not so written. Snowden v. Bell, 159 N.C. 497, 75 S.E. 721; Mebane v. Patrick, 46 N.C. 23; Ingraham v. Hough, 46 N.C. 39.\nOn appeal here, the plaintiff, appellant, not only has the laboring oar, but the tide is also against him. Cole v. R. R., 211 N.C. 591, 191 S.E. 353. In the instant case he is faced with two contrary presumptions, the one that his possession was permissive and not adverse, the other that the judgment of the trial court is correct. The impression prevails that the record as presented fails to surmount these barriers. The following authorities also support the ruling below, some directly, others obliquely. Darr v. Aluminum Co., 215 N.C. 768, 3 S.E. 2d 434; Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2; Dawson v. Abbott, 184 N.C. 192, 114 S.E. 15; S. v. Norris, 174 N.C. 808, 93 S.E. 950; Waldo v. Wilson, 173 N.C. 689, 92 S.E. 692; Land Co. v. Floyd, 171 N.C. 543, 88 S.E. 862; King v. Wells, 94 N.C. 352; Gilchrist v. McLaughlin, 29 N.C. 310; Anno. 97 A.L.R. 26; 1 Am. Jur. 916, et seq.\nThe judgment of nonsuit will be upheld.\nAffirmed.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "Parker & Lucas and Elledge & Browder for plaintiffs, appellants.", "Womble, Carlyle, Martin <& Sandridge for defendants, appellees." ], "corrections": "", "head_matter": "CHARLES W. GIBSON et al. v. PERCY JANE DUDLEY et al.\n(Filed 28 February, 1951.)\n1. Adverse Possession \u00a7 3 \u2014 Plaintiff\u2019s evidence held to show that possession was not adverse and nonsuit was proper.\nPlaintiff\u2019s evidence to the effect that he went into possession of a lot purchased by him, and used a driveway on the side of the lot under the belief that the entire driveway was on his property until defendant bought the adjoining lot, when it was discovered that a part of the driveway was admittedly included in defendant\u2019s deed, and that thereupon plaintiff conferred with defendant as to the further use of the driveway and consequently asked his attorney to fix up papers to make it a joint driveway permanently, is held insufficient to show possession by plaintiff adverse to defendant prior to the discovery of the inadvertence.\nS. Same\u2014\nA grantee\u2019s occupation of land beyond tbe boundary called for in bis deed under tbe mistaken belief that it belonged to him is not adverse to the true owner, since it is the intent to claim against the true owner which renders the entry and possession adverse.\n3. Same\u2014\nEvery possession of land is presumed to be under the true title and permissive rather than adverse.\n4. Appeal and Error \u00a7 38\u2014\nThe judgment of the lower court is presumed correct and the burden is upon appellant to show error.\nAppeal by plaintiffs from Clement, J., May Term, 1950, of Eoksyth.\nCivil action to establish title to part of driveway between plaintiff\u2019s and defendant\u2019s residential properties.\nThe plaintiffs and the defendant own adjoining lots on the west side of Buxton Street in the City of Winston-Salem. Each extends 150 feet hack to an alley. There is an eight-foot driveway leading from the entrance on Buxton Street to plaintiff\u2019s garage about 90 feet from the street. This driveway passes partly over plaintiff\u2019s property and partly over defendant\u2019s property, according to the calls in their respective deeds. The controversy is over a triangular strip of land in the driveway which is four feet wide on Buxton Street and tapers to a point in the dividing line between the two properties a distance of fifty feet from the street.\nThere is a house on plaintiff\u2019s lot which he purchased in 1924 and went immediately into possession. He did not have the exact boundaries of his lot established at the time, but assumed the driveway was entirely on his premises. He so used it without question until the defendant purchased the adjoining vacant lot in 1948, had it surveyed, and unearthed the iron stakes which were originally put down to mark the dividing line between the two lots.\nThe plaintiff then conferred with the defendant and they first suggested a joint driveway. Plaintiff went to his lawyer and \u201casked him to fix up papers to make it a joint driveway permanently.\u201d Instead, the lawyer notified the defendant that plaintiff was claiming title to the entire driveway by adverse possession for twenty years.\nThis suit is to establish the plaintiff\u2019s claim to the part of the driveway covered by defendant\u2019s deed. From a judgment of nonsuit entered at the close of all the evidence, the plaintiff appeals, assigning errors.\nParker & Lucas and Elledge & Browder for plaintiffs, appellants.\nWomble, Carlyle, Martin <& Sandridge for defendants, appellees." }, "file_name": "0255-01", "first_page_order": 305, "last_page_order": 309 }