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land of plaintiff and any other timber that they may find
convenient to move for five years does not authorize the
use of the tramway for carrying other timber after the
expiration of the five years. Leigh v. Garysburg Mfg. Co.,

In an action for damages to land a proceeding for the condem-
nation of an easement cannot be set up as a counter claim.
Leigh v. Mfg. Co., 167.

A grant to a riparian owner of land covered by navigable water
conveys only an easement therein and a deed of the land
adjoining the navigable water conveys the easement in the
land covered by the water. Land Co. v. Hotel, 519.

EJECTMENT. See "Boundaries."

Where, in ejectment, four issues are submitted, one being as to

the statute of limitations, an instruction as to facts bearing
on this issue alone should be limited thereto. Pittman v.
Weeks, 81.

A deed of a sheriff to the grantor of a plaintiff in ejectment is
no evidence of possession. Prevatt v. Harrelson, 250.

In ejectment, an instruction as to color of title, the only issues
involved being the location of a boundary and adverse pos-
session, is not prejudicial. Pittman v. Weeks, 81.

Where a final judgment on the merits of a case is rendered on
demurrer, the fact that the trial court permits the plaintiff
to amend his complaint does not affect the conclusiveness
of the judgment. Willoughby v. Stevens, 254.

An amendment effecting a complete and radical alteration in
the whole scope and nature of the action should not be al-
lowed. Finch v. Strickland, 103.

A claim for improvements will not be allowed a person holding
land under an invalid decree. Finch v. Strickland, 103.

In ejectment the evidence that the grantor of the plaintiff had
raked and hauled straw off the land in question and that
the father of the plaintiff had farmed on an acre or two
thereon, is insufficient to show possession. Prevatt t.
Harrelson, 250.

Where the plaintiff in a foreclosure or ejectment action dies,
his heirs at law must be made parties. Hughes v. Gay, 50.

In an ejectment suit where the plaintiff offers no evidence ex-
cept a deed and possession thereunder for two years, a
judgment of non-suit should be granted. Caudle v. Long,


A deed of a sheriff without a seal attached is not competent
evidence in ejectment to show title. Fisher v. Owens, 686.

In ejectment a sheriff will not be allowed to affix his seal to a
deed, having omitted it by mistake, unless such equity is set
up in the complaint. Fisher v. Owens, 686.

In ejectment by a husband and wife for land sold under execu-
tion against the husband, the issue set out in the opinion
is sufficient in form and substance to present every ma-
terial fact necessary to a determination of the case. Ray
v. Long, 891.

Where a husband and wife, suing in ejectment, claimed that the
land involved had been purchased jointly by them, each
furnishing a portion of the money, evidence to show the
purpose for which a certain sum of money was furnished by
the wife, and her accompanying directions, was properly
admitted, as tending to prove a material fact. Ray v.
Long, 891.

Where the plaintiff in ejectment offers no evidence tending to
show that defendant was in possession at the time of the
commencement of the action, a judgment of non-suit should
be granted. Doggett v. Harden, 690.

The defendant in ejectment is not estopped to dispute the title
of the plaintiff by having accepted a deed from mother of
plaintiff after the death of plaintiff's father, it not appearing
that her dower had been assigned and the burden of show-
ing this being on plaintiff. Caudle v. Long, 675.

A person cannot bring ejectment against an abutting landowner
for the possession of a street, the landowner having only
an easement thereon and not being in possession. Davis
v. Morris, 435.

In ejectment, there being an issue as to the boundary line be-
tween two adjoining tracts, the burden of proving the cor-
rect line is on the plaintiff. Harper v. Anderson, 89.

In an action to recover land which had been occupied adversely

by defendant for twenty years, the fact that the plaintiff
did not know the location of his line or that the land was
his until a few days before the suit was commenced, is
immaterial. Pittman v. Weeks, 81.

A person cannot maintain ejectment where, when the action
was begun, a grant from the State, through which he
claimed had not been and could not be legally registered,
though it had been registered at the time of the trial under
Acts 1901, Chap. 175. Morehead v. Hall, 122.

Vol. 132-75


The effect of Acts of 1901, Chap. 750, Sec. 19, is to repeal Acts
(Private) 1893, Chap. 171, Sec. 3, and an election held on
the first Monday in May, 1902, in the town of Littleton was
invalid. Rodwell v. Harrison, 45.

EMINENT DOMAIN. See "Railroads."

The owner of property must seek compensation for land taken
for a highway in the manner pointed out by statute. Hitch
r. Com'rs, 573.

In an action to condemn land for railroad purposes, the profile
required to be filed must show whether there will be any
"fills" or "cuts" on the land sought to be condemned.
Railroad Co. v. Stroud, 413.

Where the articles of incorporation of a railroad company are
upon their face void, the trial court will so declare in a
proceeding to condemn land by right of eminent domain
claimed thereunder. Railroad Co. v. Stroud, 413.

Acts 1887, Chap. 276, does not authorize an appeal from a clerk
of the superior court to a judge at chambers, in a proceed-
ing to condemn land for railroad purposes, on exceptions to
report of commissioners. Railroad Co. v. Stewart, 413.

In a special proceeding by a railroad company to condemn land
for railroad purposes, the burden of showing that the com-
pany intended in good faith to construct the road and had
complied with the requirements prescribed by law for the
condemnation of a right of way, is on the petitioner. Rail-
road v. Lumber Co., 644.

A special proceeding for the purpose of condemning land for
railroad purposes must be begun by the issuance of a
summons. Railroad Co. v. Mfg. Co., 644.

The fact that the method prescribed for assessing the damage
caused by taking land for the construction of a sewage plant
was illegal is not ground for restraining the construction of
the plant. Nickers v. Durham, 880.

A private corporation is not entitled to condemn land for a
tramway solely for its own use and have permanent dam-
ages assessed therefor, except to obtain a temporary ease-
ment ex necessitate. Leigh v. Mfg. Co., 167.

In an action for damages to land a proceeding for the condemna-
tion of an easement cannot be set up as a counter claim.
Leigh v. Mfg. Co., 167.

In an action to recover damages for occupying land with a
tramway, the defendant is not entitled to show in mitigation


of damages that he hauled freight free of charge for the
tenants of the plaintiff. Leigh v. Mfg. Co., 167.
Under Acts (Private) 1889, Chap. 62, Sec. 24, providing for the
condemnation of land in Elizabeth City, a landowner who
fails to appeal from an award of damages in such proceed-
ing cannot maintain an independent action for the value of
the land. Lamb v. Elizabeth City, 194.


A court of equity may correct mutual mistakes in written in-
struments. Warehouse Co. v. Ozment, 839.


Where the husband and wife purchase property, each furnishing
a portion of the purchase money, an estate in entirety is
created, and they hold per tout et non per my. Ray v. Long,

When a will provides: "I loan unto my son my entire interest
in the tract of land *
to be his during his natural
life, and at his death I give said land to his heirs, if any,
to be theirs in fee simple forever; and if he should die
without heirs, said land to revert back to his next of kin,”
the son takes merely a life estate. May v. Lewis, 115.

Where the owner of a part of the servient estate becomes the
owner of an easement thereon, there was a merger only to
the extent of his interest. Barringer v. Trust Co., 409.
Where the owner of a one-fifth undivided interest in a tract

of land executes a deed purporting to convey his entire in-
terest in the land, but refers to his interest as a one-sixth
undivided interest, such deed passes his entire interest in
the land. Murphy v. Murphy, 360.

In an action for damages to land, the title being in issue, the
plaintiff may show possession for more than thirty years
under a deed which is in evidence, and the question of title
should be left to the jury. Bullock v. Water Co., 179.

Where a testatrix devises land to her daughter and her heirs
forever, and in a subsequent clause provides that such land
be kept for her daughter and her children forever, the
daughter takes the legal title impressed with a trust for the
children and may pass such naked legal title by deed. Deans
r. Gay, 227.

The court has the power to order the sale of real estate limited
to a tenant for life, with remainder to children or issue,
upon failure thereof, over to persons all or some of whom
are not in esse, when one of the class being first in remain-


der after the expiration of the life estate is in esse
and a party to the proceeding, to represent the class,
and that upon decree passed, and sale and title
made pursuant thereto, the purchaser acquires a perfect
title as against all persons in esse or in posse. Springs v.
Scott, 548.

Under the terms of the will set out in the opinion the children
death of the widow

of the devisor living at the time of the
of the devisor take a fee simple estate.
ton, 469.

Lockhart v. Coving-


A proceeding by an administrator to sell land for assets to pay
debts is not conclusive against the heirs at law as to the
validity of the alleged debts. Austin v. Austin, 262.

Where a minor, after attaining his majority, accepts the pro-
ceeds of a sale of land under a deed of trust, he is estopped
from denying the validity of the sale, though he was ad-
vised by counsel that he would not be estopped thereby.
Norwood v. Lassiter, 52.

Where a minor, after attaining his majority, accepts the pro-
ceeds of a sale under a deed of trust, he is estopped from
disputing the validity of the sale on the ground that the
trustee sold without a previous request from the creditor
as required by the trust deed. Norwood v. Lassiter, 52.

A statement by a trustee in a deed of trust that the amount
due thereunder is the principal and interest does not
estop him from afterwards receiving the commissions stipu-
lated in the deed of trust. Duffy v. Smith, 38.

Where a demurrer goes to the merits of an action (here eject-
ment) judgment sustaining it is conclusive upon the parties,
and will bar another action for the same cause. Willoughby
v. Stevens, 254.

A judgment in an action for the balance due on a mortgage note
after sale under the power given in the mortgage, the de-
fendant having failed to plead as a counter claim the pur.
chase by the mortgagee, does not estop the mortgagor from
pleading this counter claim in a subsequent action. Mauney
v. Hamilton, 303.

In replevin by a mortgagee for a safe, where defendant did not
allege ownership of the safe, nor was there any testimony
that he had purchased it from the mortgagor, a judgment
for the mortgagee in a former suit between the mortgagee
and mortgagor to recover the safe and other property cov-
ered by the mortgage, reciting that the cause came on to

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