The lessor gave in evidence a grant from the State to Thomas Dockery, dated in 1771; then a deed from him to William Webb, dated in 1806; then a deed from William, John, Richmond, and Alexander Webb to Euclid A Everett, the ancestor of the lessors of the plaintiff, dated 1 January, 1842, and offered evidence further to prove the defendant in possession, and also that the land described in the grant and the two deeds included the locusin quo. The deed from the Webbs contains a description of the land by metes and bounds, following a general description, which is as follows: `lying on both sides of Cartridge's Creek, with Alfred Dockery's mill-seat excepted." The lessors further showed that they, and those from whom they claimed, had been in possession of the land described for from thirty to fifty years, and that their boundaries were known and visible. They further offered evidence that the mill of the defendant was disused by him for several years, and that from 4 to 6 acres, where the pond had been, were in cultivation, under fence, in 1855, when this suit was brought. When the deed, in 1842, was made to Euclid Everett, the defendant was in occupation of the mill.
The defendant then offered evidence that he had built a mill on Cartridge's Creek, which he had occupied for twenty years previous to *Page 302 1845; that the water had been ponded continually during that time up to the limits where the fence had been placed in 1855, and that (391) he had cut trees in the pond for logs, which had been sawed up at the mill.
The court charged the jury to inquire, first, whether the grant and deeds offered by the lessors of the plaintiff covered the land sued for, and if they should find this fact for the lessors of the plaintiff, they should next inquire whether the defendant was in possession at the bringing of the suit, and if they should find this to be so, whether he had being in possession twenty years before the right of the lessors accrued. The jury were further instructed that the ponding of the water upon the land and the cutting of timber from time to time were not, in themselves, an occupation, actual and adverse, but only evidence of a claim to the thing so used; that the occupation for twenty years of the mill would be a possession, from which the law would presume the necessary assurance of title to the defendant, and that with the mill would pass whatever else had been so held that was needful for its use and enjoyment. And the court further instructed the jury that if the defendant had such possession on 1 January, 1842 (the date of the Webb deed), no title passed by it to Euclid A. Everett, under whom the lessors claimed. The plaintiff's counsel excepted to these instructions.
Verdict for the defendant, and appeal by the plaintiff. It cannot be disputed that the lessors of the plaintiff established, by their proofs, a full and complete title to the land in controversy, unless the exception in the deed from the Webbs to the ancestor of the lessors included it, or the defendant had acquired it himself, or prevented the lessors from acquiring it himself, or prevented the lessors from acquiring it by his adverse possession. It is clear that the exception in the deed referred to gave no title in the soil of the millpond to the defendant. By it he could acquire, at the utmost, only the land necessary for the mill-site, the dam, and the right of ponding the water upon the soil above as an easement. Whitehead v. Garris, (392) 48 N.C. 171. This being so, as it undoubtedly is, no length of time in the enjoyment of his easement by the defendant could take from the lessors and give to him the ownership of the land covered by the water. The lessors certainly had no right of action against the defendant for keeping up his dam and ponding the water back upon their land, and if he had continued to do so for fifty years, instead of twenty, it would not have availed him anything towards acquiring title *Page 303 to the soil. His Honor erred, therefore, in leaving it to the jury to infer a title in the soil from such possession. The cutting of trees in the pond for saw logs was equally unavailing to the defendant. It is not stated how many he cut, nor during how long a period he was engaged in doing it. It is simply said that "He cut trees in the pond for logs, which had been sawed up at the mill." This was not such an adverse possession as, if continued for seven years under a color of title, would have conferred a title on the defendant. Green v. Harman, 15 N.C. 158; Loftin v. Cobb, 46 N.C. 406. It could not therefore, prevent the deed from the Webbs, which was executed in 1842, from passing the title which they had to the ancestor of the lessors. Neither, as we have already shown, could the enjoyment by the defendant of his easement in the mill-pond have that effect. His Honor erred again in that part of the charge.
PER CURIAM. Venire de novo.
Cited: Bowling v. Burton, 101 N.C. 180; McLean v. Smith, 106 N.C. 178.