Opinion
(August Term, 1852.)
Where there is no proof to establish a fact, the jury should be so instructed; and it is not the duty of the court to state to them an abstract proposition, but to state the law as applicable to the facts proved.
APPEAL from Bailey, J., at Spring Term, 1852, of ASHE.
T. R. Caldwell for plaintiffs.
Burton Craig and Nat. Boyden for defendants.
The plaintiffs claimed the land in dispute under a grant issued in 1834 and embraced in the diagram N, M, O, P. The defendants produced no deed nor color of title, but relied upon a long possession up to known and visible boundaries, and proved by a witness that twenty-six years before the action was brought he saw three trees at A, B, and C on the diagram, marked as corner trees to land boundaries; that his father then lived at the spot marked with figure 4 and claimed those trees as boundaries of the tract of land A, B, E, F, and had enclosures about and north of his dwelling. Evidence was given by defendants of small fields being cleared and fenced in on different parts of the land claimed by them, and of their actual occupation; but as our opinion does not rest upon the length of possession of the defendants and of those under whom they claim, a more minute detail of facts relative to it is not given. His Honor instructed the jury that (447) if the defendants and those under whom they claim had actual possession of some part of the land claimed up to well-known and visible lines and boundaries, by enclosures on some part of the land, for thirty-eight or even thirty years before the commencement of the suit, claiming all that time up to well-known and visible lines and boundaries, and exercising during this time acts of ownership up to these well-defined lines and boundaries, etc., then it would be their duty to find for the defendants. The objection to the charge was, if it were right in the abstract, its inapplicability to the facts in the case and it being calculated to mislead the jury. When there is no proof to establish a fact relied on, the jury should be so instructed; and it is not the duty of the court to state to them an abstract proposition, but state the law as applicable to the fact proved. Redman v. Roberts, 23 N.C. 479; Rowland v. Rowland, 24 N.C. 61; S. v. Martin, 24 N.C. 101; S. v. Collins, 30 N.C. 407. In this case there was no evidence whatever of any marked lines around the tract of land claimed by the defendants; only three trees marked as corner trees to land boundaries were shown to exist or to have ever existed.
For this error the judgment must be reversed, and a
PER CURIAM. Venire de novo.
Cited: Cronly v. Murphy, 64 N.C. 490; S. v. Chavis, 80 N.C. 358; William v. Harris, 137 N.C. 461.
(448)