The plaintiff claimed under a grant issued in 1770, and deduced a regular title from the grantee to himself. He then, upon the point of possession, proved that the locus in quo was a swamp, entirely uncultivated, and that in the years 1774, 1814, and 1822 three several persons had, under a license from him, cut timber on the land.
The defendant claimed under a grant, dated in the year 1743, to one Samuel Boatwell, and one question in the cause was whether this grant covered the locus in quo. Upon this point the defendant (35) offered a deed, dated in 1748, whereby Samuel Boatwell conveyed to one Godley a tract of land patented by Edward Salter, and calling for *Page 40 the lines of Samuel Boatwell, Sr., and Samuel Boatwell, Jr., as two of its boundaries. The plaintiff objected to this deed as not being evidence in relation to the boundaries of Boatwell's grant of 1743. But the defendant insisting that it was one of the mesne conveyances under which he claimed, his Honor permitted it to be read. It was in proof that there were two Samuel Boatwells, who had been long dead, but no evidence was given as to which of them was the vendor in that deed.
The plaintiff examined one Cherry, a surveyor, who had surveyed the adjacent lands about twenty years before, in consequence of a suit then pending between him and one Bryan Blount, who testified to the beginning corner upon the plat made under a survey ordered in this cause. He also offered to the jury the plat made by the witness in the suit with Bryan Blount. This testimony was objected to by the defendant, and rejected by the presiding judge.
In addressing the jury upon the question of boundary, the defendant's counsel adverted to the fact that the deed of Boatwell to Godley called for the lines of Samuel Boatwell, Jr. The plaintiff's counsel, in his reply, insisted that the calls of this deed were not evidence on the question of boundary, contending that the vendor was the same Samuel Boatwell to whom the grant of 1743 issued, and in urging that the deed was not evidence as to the question of boundary, he stated that he affirmed this under the correction of the court. Upon this observation of the counsel, no remark was made by the judge.
His Honor charged the jury that if the plaintiff had title to the locusin quo, that title gave him a constructive possession, which was sufficient to enable him to sustain this action, but that if they believed the defendant had succeeded in showing that the plaintiff had no title, (36) but the title was in another, although the defendant could not deduce it to himself, that then, in order to entitle himself to recover, the plaintiff ought to show an actual possession, and that his having, at the times above mentioned, permitted others to cut timber on the land was not evidence from which they could infer an actual possession. Nothing was said to the jury respecting the deed of Boatwell, neither was his Honor requested to instruct them upon any particular point.
A verdict was returned for the defendant, and the plaintiff appealed. The plat made by Cherry was not evidence at all. If it was necessary and competent to prove the beginning of the line run by him, that had been done by the witness himself, and the point designated, in his testimony to the jury, on the plat then before them, and made in *Page 41 this cause. The only purpose for which admission of the other plat was sought must have been to mislead the jury, by letting them see how Cherry ran the line from that beginning, in the hope that they would regard that as the true line. This conclusion they could not properly draw, either from the fact that Cherry had run it or that one of the parties for whom he was then surveying had insisted on it as the line.
The instruction upon the point of possession was also correct. I do not accord with the counsel for the defendant that in the absence of title actual possession — that is, by residence or enclosure and cultivation — must be shown to support trespass. The argument is that though swamp, the land is susceptible of draining and cultivation, and nothing short of that should be taken to be a possession, when, from the nature of the subject, that can be done. I think the rule is that exercising that dominion over the thing, and taking that use and profit which it is capable of yielding in its present state, is a possession. It is all that can be done until the subject itself shall be changed. It is like the case stated in the books of cutting rushes from marsh. This is sufficient, though it might appear that dikes and banks would make (37) the marsh arable. But acts of this description must partake of the character of ownership, and of a continued assertion of right and exercise of it. Occasional acts, with long intervals between them, do not denote title, nor the claim of dominion; at least, they are very ambiguous evidences, and may as well be taken for the wrongs of a trespasser as the assertion of a rightful dominion. Here there has been a cutting of timber on three occasions only in sixty years — since 1770 — and the last time was seven or eight years before this suit. They create neither a presumption of title nor present possession.
Without entering into the inquiry, whether the deed from Boatwell was, under the circumstances, evidence of boundary, the Court thinks the judge below committed no error touching it. When offered for that purpose, it was not admitted by the Court. When offered as a link in the chain of title, it was properly received. It was uncandid in the counsel, when he failed to make out a title, to draw it to the aid of his cause upon another point, to which the court had held it not to be evidence. The court might properly have stopped him, and reprehended the unrespectful demeanor. But it is not error in law not to have done it. The opposite counsel might also have called upon the court to correct a course of argument not founded upon legal evidence, and injurious to the side with the care of which he was charged. If he would not move the court to interpose, but chose to rely on his own reply to the jury, he cannot complain that the judge did not of his own accord do it. The party must move the court before he can impute error in a case of this sort. The counsel did reply, and properly, to the argument. The *Page 42 judge gave the reply his sanction — for his silence under the circumstances was a sanction. But if it were not, the court is not bound, in summing up to the jury, to notice every position discussed between the counsel, which would lead to most inconvenient prolixity. If any (38) thing deemed material be omitted, the counsel can call the attention of the court to it, and pray an instruction. A refusal would constitute error when an omission would not. Many cases do not require a charge from the court, and few a full one. Something must be left to the discretion and sense of propriety of the presiding judge. And at all events it is not error for the court not to be active when the party has not moved it.
PER CURIAM. Judgment affirmed.
Cited: Green v. Harman, 15 N.C. 161; Brown v. Morris, 20 N.C. 567;Tredwell v. Reddick, 23 N.C. 58; Cook v. Norris, 29 N.C. 215; S. v.Rash, 34 N.C. 386; S. v. Cardwell, 44 N.C. 249; Loftin v. Cobb, 46 N.C. 412;S. v. Caviness, 78 N.C. 487; Brown v. Calloway, 90 N.C. 119;Staton v. Mullis, 92 N.C. 632; Baum v. Shooting Club, 96 N.C. 316; S.v. Bailey, 100 N.C. 534; McKinnon v. Morrison, 104 N.C. 363; Berry v.McPherson, 153 N.C. 6; Coxe v. Carpenter, 157 N.C. 561; Locklear v.Savage, 159 N.C. 238; McCaskill v. Lumber Co., 169 N.C. 26; Cross v. R.R., 172 N.C. 125; Alexander v. Cedar Works, 177 N.C. 145.