Henley v. . Wilson , 77 N.C. 216 ( 1877 )

The plaintiff was the owner of valuable mills on the west bank of Haw River, erected for a gristmill and wool-carding machine, etc. The defendants were the owners of a sawmill situated on the east bank (217) of the river, above the plaintiff's mills, which were run by water power, the water being conducted by a race formed by two dams. The defendants increased the height of the dams and cut a race across plaintiff's line, thereby interfering with the water power of plaintiff, and for the trespass and the damage resulting therefrom this action was brought.

The plaintiff's title to the land upon which his mills were situated and the trespasses were alleged to have been committed was denied by the defendants. Both parties claimed under one H. J. Stone, who conveyed the land on 9 November, 1848, to one McClennahan for life. The plaintiff then offered in evidence mesne conveyances from McClennahan to himself, which were admitted to be regular; one of these conveyances being a fee-simple deed from McClennahan to Mary Taylor, dated 24 May, 1852; and it was proved that McClennahan died in 1859. After the commencement of this action, and in furtherance of an understanding between Stone and McClennahan to cure a mistake in the first deed, Stone executed a deed to the plaintiff, conveying said land in fee and reciting in the deed that he intended to convey a like quantity of interest to McClennahan in the first instance. The plaintiff and those under whom he claimed were in possession of the land from 9 November, 1848, to the present time, claiming to be fee-simple owners thereof. Stone executed a deed for land adjoining the plaintiff's tract to one Temple, which deed was burnt in Temple's house; and thereupon, at the request of Temple, and before he (Stone) went into bankruptcy in 1867, he executed another deed in lieu of the one burnt, and dated it 25 August, 1848. It was alleged that this was not the date of the original deed, nor was the land described by the same boundaries. Some testified, among other things, this deed was made without reference to the McClennahan deed, and was intended to convey the same land that was embraced in the original deed to Temple, which deed did not call for the (218) river, but for McClennahan's line. But the deed of 1867, which was offered in evidence, called for the river. Temple conveyed to the defendants in 1876, and be testified that the deed of 1867 was the same as that of 1848 in regard to boundaries and date.

The defendants objected to the testimony of stone, and also to the evidence in regard to the damages sustained, upon the ground that damages, by reason of the erection of the defendants' sawmill, could only be recovered in a special proceeding, and should be assessed by commissioners. The objections were overruled, and under the instructions of his Honor the jury rendered a verdict in favor of the plaintiff Judgment. Appeal by defendants. The pleadings show a degree of caution and secretiveness by resorting to general expressions and the omission of dates that is not to be commenced. We are aware that many gentlemen of the profession adopt this mode of pleading, relying upon the very full power of allowing amendments under C. C. P. We enter our protest against it as calculated to defeat the object of pleading, which is to give notice of what is expected will be proved at the trial, so as to prevent surprise. This vicious practice would be corrected if the judges of the Superior Courts, in the exercise of their discretion, would refuse to allow the pleadings to be amended after verdict, so as to make the allegations conform to he facts proved, whenever there is reason to suppose that the vicious mode of pleading was adopted on purpose to embarrass the opposite party. In such cases the court should refuse to give judgment, and let the party have the benefit of the verdict and bring (219) another action.

There is no allegation in the complaint of any mistake in the deed of Stone to McClennahan, by which a life estate is conveyed instead of the fee simple; and unless the plaintiff has made out a case on the legal title, he will be obliged to pay the costs in this Court and have the case remanded, to the end that the pleadings may be amended, if the judge should deem it to be a proper case in which to allow an amendment after verdict.

The plaintiff's counsel, on the argument, took the ground that he could maintain the action as equitable owner in possession under the provisions of C. C. P., sec. 55. The provision does not apply; for the plaintiff has no equitable estate as a purchaser in possession, or other cestui quetrust, but has only a right in equity to have Stone converted into a trustee and decreed to execute a deed in fee simple; and the fact that Stone, pending the action, executed the very deed that he would have been required to execute does not vary the case; for the deed took effect only from the time of its delivery, and Stone had no power to make it relate back to the time of the execution of the deed to McClennahan. Indeed, the court of equity has no such power, and could only have required Stone to do what he has done, namely, execute a deed in conformity to the intention of the parties, and then have "enforced the right in equity" by a perpetual injunction that Stone and those claiming under him should not disturb the title under the deed to McClennahan, on the principle that "equity considers that to be done which ought to have been done."

As to the plaintiff's right to recover upon the legal title, we have seen that the deed of Stone executed pending the action does not relate back to the execution of his deed to McClennahan. But the counsel of the plaintiff insists that he had acquired the legal title by seven years adverse possession under color of title. The question is, When did (220) the adverse possession begin? Not at the date of the deed of McClannahan to Mrs. Taylor in 1852, for although the conveyance to her was in fee, she was not exposed to an action during the life of McClennahan, for she had the true title during his lifetime and was not liable to an action by Stone or those claiming under him until the death of McClennahan, which, as stated in the case, was in 1859. It is not set out at what time in 1859; so plaintiff's counsel takes a starting point — 1 January, 1860, to 20 May, 1861, when the statute of limitations was stopped — one year, four months and twenty days; from 1 January, 1870, to 22 July, 1876, when the action was brought — six years, six months and twenty — two days; total, seven years eleven months and twelve days.

This calculation which the plaintiff's counsel makes in his brief would do very well, provided the defendant had not entered into possession under the deed of Stone to him, executed in 1867. But the defendant had entered and taken possession some time before the commencement of the action. How long before is not set out in the case. It may have been more than one year, eleven months and twelve days. If so, that interrupted the running of the statute of limitations. Here the plaintiff fails because of the generality of his allegations and the omission to give precise dates; and in such loose statements no intendment can be made in favor of the pleader.

The complaint (paragraph 6) sets out "that defendants, against the will of plaintiff, entered and added 3 feet to the height of plaintiff's upper dam." etc. No date is given.

And in paragraph 8, "In addition to the injury caused by the increased height of the dam, defendants entered upon said land and cut a race," etc. No date is given.

In the absence of any allegation or proof to the contrary, we must assume that these trespasses were committed before the plaintiff's title had ripened by seven years adverse possession; and the only question is, Were these acts mere temporary trespasses, or were they (221) of a continuing nature, so as to permanently interrupt the plainatiff's [plaintiff's] adverse uossession [possession]? As to that, there can be no doubt; for the defendants continued to use the dam so increased in height, and the race so cut, for purpose of their own up to the bringing of this action.

As the case goes back, we think it proper to declare our opinion to be that the reception of the testimony of Stone as to the fact that the deed to Temple was executed in 1867, and not in August, 1848 (as it was dated falsely to overreach the deed to McClennahan in November, 1848, which fact could have been proved by the subscribing witnesses), was admissible. His testimony that the boundaries in the deed made by him to Temple in 1867 differed from the boundaries in the deed alleged to have been burnt — executed after the deed to McClennahan — was also competent for the purpose of having the deed obtained in 1867 reformed. But there is no allegation in the complaint to set up this equity, and, indeed, the evidence was immaterial. We also declare our opinion to be that the trespasses complained of being done on the plaintiff's land, as he alleges, do not come under the operation of the milldam act, which applies only to "trespass on the case" for acts done on the defendant's own land to the injury of the plaintiff, by ponding backwater, or other like injuries.

PER CURIAM. Venire de novo.

Cited: Gudger v. White, 141 N.C. 518; Cedar Works v. Lumber Co.,168 N.C. 396.

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