Opinion
(June Term, 1860.)
One who was in adverse possession, cultivating turpentine, though not the owner of the land, was Held, nevertheless, the owner of the turpentine gathered, and might support the action of trover against the true owner of the soil for taking it.
TROVER, tried before Shepherd, J., at last Spring Term of HARNETT.
B. F. Moore, N. McKay, and Strange for plaintiffs.
T. C. Fuller for defendants.
The plaintiffs showed that in January, 1854, they were put into possession by one Cameron of several thousand turpentine boxes in Harnett County, and went upon a tract of land where they cut a few thousand more, and during the spring of that year, while occupying and working the land where these boxes had been made, and after the turpentine had run down into the boxes, the defendant dipped the turpentine out and carried it away. They showed the value of the turpentine, and closed their case.
(379) The defendants then offered in evidence two grants from the State, one in 1836 and one in 1850, covering the locus in quo, and offered to show themselves the owners, but the court ruled that the grants, as evidence of title, were immaterial. The grants were then put in evidence for the purpose of showing the character and extent of possession in the defendants. The defendants then showed that in 1853 they had cut boxes on part of the land within their grant, and that they forbade the entry of the plaintiffs when they began to work in 1854. They further showed that they had a tenant on some part of this land two years before this time, and that one King had also worked turpentine on a part of the land for one year, under a lease from them, but it appeared that the boxes made and worked by King were half a mile distant from those made by the plaintiffs. The defendant did not claim to have made the boxes let by Cameron to Branch and Thomas, nor did she show any possession other than that set out.
The court instructed the jury that the plaintiffs were entitled to recover if they had the actual possession of the land in the part where their boxes had been made, and if they had produced the turpentine which was dipped out and carried away by the defendants; and further, the court charged that if the plaintiffs had worked these boxes during the spring, in the usual course of turpentine cultivation, and were so doing when the defendants carried the turpentine off, this was such an actual possession as was sufficient for the action. The defendants excepted.
Verdict and judgment for plaintiffs. Appeal by defendants.
There is nothing in this case to distinguish it from the cases heretofore in this Court involving the same matter of dispute, Branch v. Morrison, 50 N.C. 16, and S. c., 51 N.C. 16.
It can make no difference that the defendants were in possession (380) under grants covering the locus in quo before the entry of plaintiffs. The latter had entered, and were, as the case affirms, in possession also. Each had a separate and distinct possession, and in this state of facts the rights of the parties are decided by the cases referred to. Principles are there settled entirely exclusive of the rights of the parties here.
It is settled, not only in those cases, but also in previous adjudications, that the cultivation of pines for turpentine, in the usual course of that business, is a possession of the land on which they grow, and the true owner must regain the dominion, if he desire it, by an action of ejectment, and get the intermediate profits by the remedy appropriate to that right. To allow one to seize the product of another's labor as it may be severed from the land would be to encourage amongst citizens a resort to force and oppression in the adjustment of their rights, and lead ultimately to anarchy and ruin.
Hence, it was held by this Court in the cases between the parties when they were before us on former occasions that one who was in adverse possession, cultivating turpentine, though not the owner of the land, was, nevertheless, the owner of the turpentine gathered, and might support the action of trover against the true owner of the soil.
We have seen no reason to doubt the authority of these cases; there is no material difference between them and the case now presented, and there should, therefore, be a similar disposition made of them.
PER CURIAM. No error.
(381)