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De Nemours v. Moore

Filed: May 4, 1982.

E.I. DU PONT DE NEMOURS & COMPANY
v.
ALLISON L. MOORE AND MYRON R. MOORE



Appeal by plaintiff from Howell (Ronald), Judge. Judgment entered 31 July 1980 in Superior Court, Transylvania County. Heard in the Court of Appeals 2 March 1982.

Clark, Judge. Judges Arnold and Webb concur.

Clark

The trial court's judgment dismissing plaintiff's claims was based on the conclusion that plaintiff had failed by proof to fit the description in its complaint and deed to the land it covers and had failed to prove title by adverse possession. Plaintiff excepted to this conclusion and the various findings of fact tending to support it and assigned error.

Plaintiff offered in evidence two duly recorded State Grants to Clinton Moore, as follows: first, Grant No. 123, dated 6

December 1844; and, second, Grant No. 181, dated 31 December 1846. The various deeds, wills and other muniments of title offered into evidence by plaintiff failed to show a connected chain of title from the two Moore grants to plaintiff, but plaintiff did offer competent evidence that the land described in its complaint and deed was the same land described in the two Moore grants. Plaintiff's connected chain of title began in deeds dated in September 1956. Having failed to prove a connected chain of title from the State, plaintiff attempted to show title by adverse possession, by methods (2), (3), and (4), as listed in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889).

To show title the adverse possession must be under known and visible lines and boundaries. McDaris v. "T" Corporation, 265 N.C. 298, 144 S.E.2d 59 (1965); Scott v. Lewis, 246 N.C. 298, 98 S.E.2d 294 (1957); Lindsay v. Carswell, 240 N.C. 45, 81 S.E.2d 168 (1954). In McDaris, where the plaintiff's claim of ownership was based on adverse possession, the court stated: " . . . he must by proof fit the description in the deed to the land it covers -- in accordance with appropriate law relating to course and distance, and natural objects and other monuments called for in the deed." McDaris, supra, at 301, 144 S.E.2d at 61. The court found that the burden of fitting the description to the land, sufficient to take the case to the jury, was carried by plaintiff's evidence that a surveyor had owned the land and been on it a number of times, that the surveyor had pointed out the corners to the plaintiff, and that plaintiff was familiar with the property described in his deed and the complaint.

Plaintiff in its original complaint alleged three causes of action: trespass, action to quiet title, and slander of title. At the close of plaintiff's evidence the trial court allowed plaintiff to file an "Amendment to Complaint," which was in effect a restatement of and substitution for its original action to quiet title, differing from the original in that the land claimed by plaintiff was described in accordance with the map based on the survey made by Perry R. Raxter, licensed surveyor, in 1977.

There were marked differences in the description contained in the original complaint and the description based on the 1977 map. The complaint description was the same as that in the deed to plaintiff from Frank Coxe and others in 1956. Raxter testified

that there were errors in the deed (and complaint) description, primarily as to distances, but that if these distances were controlled by natural or artificial monuments which he found at the corners, the deed (and complaint) description would be substantially the same as his map description, and that the tract described in the original complaint and the tract as shown on his 1977 map were in fact the same.

Raxter attempted to testify that there were errors in the complaint description in that the distance calls for several lines were too long. The trial court stated: "There is no showing here that this description is erroneous. You are trying to impeach your own description." If Raxter had been permitted to answer he would have testified that the distance errors were obvious and that a survey according to the complaint description would have resulted in encroachment upon the lands of adjoining owners; that following the complaint and deed description was the provision that the land was "the same property described in a deed from Cagle to Thomas, dated November 17, 1868, and recorded in Book 1, page 452 . . ."; that the Cagle deed described the same two tracts of land described in the two State grants, Nos. 123 and 181, to Clinton Moore; that he surveyed the lands by the descriptions of the adjoining tracts in these two State grants; and that the amended description based on his survey and map was the same land as that described in the complaint if natural objects and monuments controlled the distances.

Plaintiff moved to be allowed to amend the complaint to set up an additional cause of action alleging that plaintiff was the owner of lands as shown on the Raxter plat. The motion was denied with ...


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