Opinion
(June Term, 1852.)
APPEAL from Settle, J., at Spring Term, 1852, of CUMBERLAND.
Shepard and Kelly for plaintiff.
W. Winslow for defendant.
No mere possession of land for a period of time less than thirty years will authorize the presumption of a grant.
The lessor of the plaintiff derived title to the premises by a grant from the State to himself in January, 1846. The defendant gave evidence that he had been in actual and continued possession of the (263) premises for twenty-four years before this suit was brought, which was in May, 1847; and his counsel prayed an instruction that the jury might therefore presume a grant to the defendant prior to that to the lessor of the plaintiff. But the court refused to give that instruction to the jury, and, on the contrary, directed them that the possession for twenty-four years would not authorize the presumption of a grant. Verdict for the plaintiff, and judgment, and the defendant appealed.
The judgment must be affirmed. The length of possession required for raising the presumption of a grant from the State has often been the subject of consideration and conference among those who have been judges of this Court at different periods. The great and rapid changes wrought by the care and culture of man in the condition and value of the wild lands of our country, and the consequent propriety of quieting men in their estates, on which they had bestowed their labor sufficiently long to work those changes, early induced the Legislature to render much shorter than they had been the periods at which bad titles should become good, as bars to the entry of a private person or under the State, when such possession was under color of title. The courts, by that example, felt constrained to modify the rule in respect to the presumption of a grant at common law, by allowing that effect to a shorter possession than had been required by our ancestors in England. It was obvious, however, that it was indispensable to fix on some certain minimum of possession as necessary to raise the presumption; for, otherwise, there would be no rule as the law of a case, and each question, as it should arise, would rest in the arbitrary discretion of the judge, or in the not less arbitrary but less balanced discretion of the (264) jury. In setting on the minimum the judges would naturally resort to the analogies supplied by the legislative action; and, having regard to the provision of the act of 1791, that even a possession under color of title and to known and visible lines must continue for twenty-one years before it would be a bar to the State, it appeared to them that a grant to one who entered apparently as a wrong-doer could not be judicially presumed in less than thirty years. That was finally adopted as the period for which, at the least, there must be a possession in order to establish a grant. Although that precise period was not definitely concluded on at first, and although some particular judge may have entertained a doubt whether the diminution from that at the common law in England might not perhaps be too great, yet no judge distinctly dissented from it at any time; and since the case of Candler v. Lunsford, 20 N.C. 542, the time has been considered fixed at thirty years; for, although the evidence was there of a possession for thirty-five years, the instruction to the jury was that from an uninterrupted possession of thirty years they should presume a grant, and the judgment was affirmed here by the concurring opinion of all the judges. The same period was subsequently specified in Wallace v. Maxwell, 32 N.C. 110, and again it was distinctly stated, in Reed v. Earnhart, 32 N.C. 526, as the shortest which could authorize the presumption of a grant. The point has never been drawn into question since 1839; and the judges of the Court at present coincide unanimously in opinion on it, which it is thought proper to mention, as it involves a rule of property, and is therefore a point of importance, which makes it fit that it should be known to be judicially settled.
As to leaving the matter to the jury as a presumption of fact on this evidence, according to the prayer of the defendant, that was out of the question. It is difficult to suppose a case in which a grant ought not to be presumed where there has been a possession of a portion of (265) the public domain for the requisite length of time; and it seems not less difficult to suppose that a jury could be justified in finding that a grant had actually issued, when there was no direct proof of it, and there was not the requisite length of possession. Bullard v. Barksdale, 33 N.C. 461. But if the question as to the presumption of the latter kind could arise upon any state of facts, it certainly could not in this case. What was there to submit to the jury? Nothing but the naked fact of twenty-four years possession. And it would be manifest absurdity to leave it to the jury to deduce therefrom a presumption which the court was unable to do, upon the ground simply that the law would not allow of such a presumption from a possession so short.
PER CURIAM. No error.