The action was ejectment, in which defendant relied upon a prescriptive title, the defense being the statute of limitations, and was tried before Judge PARROTT of the Lumpkin Superior Court, at September Term, 1871.

Title was shown from the State down to plaintiff. For the defense, it was shown that the premises in dispute was a wild lot, not fit for cultivation, and that from time to time, defendant exercised ownership over it, by cutting wood and timber therefrom, and digging gold therefrom, claiming possession, though not living on the land, ever since he bought it in 1834, and took a bond for titles therefor from one claiming it as his, and paying him at least part of the promised price.

The court charged the jury, among other things, that if the land was not fit for cultivation, but was chiefly valuable for timber and mining, they could consider whether the use and occupation which defendant had enjoyed, was equivalent to such actual possession as would be the foundation of a prescription title, either by seven years' possession under color of title, or by twenty years' possession without title. [But such use and occupation must be continuous, that is, from day to day, month to month, and from year to year.]

The jury found for the plaintiff. Defendants' counsel moved for a new trial, upon the grounds that the verdict was contrary to the evidence, and the charge of the court (not repeated here), and because that part of said charge above, in brackets, was contrary to law. The court refused a new trial.

This is assigned as error.

WEIR BOYD, for plaintiffs in error.

H. P. BELL, for defendants.

Opinion by WARNER, Chief Justice.

This was an action of ejectment, to recover the possession of a tract of land in Lumpkin county. On the trial of the case, the defendant claimed the land under a prescriptive right to the possession of the land for seven years, under a color of title and claim of right. Whether the defendants' possession, under the evidence, was sufficient to protect him

under the law, was a question of fact for the jury; and if they had found a verdict for the defendants, we should not have been disposed to disturb it. But under the charge of the court, the jury could not well have done otherwise than have found a verdict for the plaintiff. The court charged the jury, "that if they believed from the evidence, that the lot of land was not adapted to agricultural cultivation, but was chiefly valuable for timber and mining purposes, then they could consider whether the use and occupation which defendants had enjoyed was equivalent to such actual possession as would be the foundation of a prescription title, either for seven years under color of title, or twenty years without title; but such use and occupation must be continuous, that is, from day to day, month to month, and from year to year."

This charge of the court, in view of the evidence in the record, was error, and a new trial should have been granted. Let the judgment of the Court below be reversed.

MOORE V. THOMPSON ET AL.

(69 North Carolina, 120. Supreme Court, 1873.)

Facts amounting to adverse possession. The quarrying of rock, burning

lime, and cutting wood for a lime kiln, building sheds, etc., continued 'during seven years, amount to an adverse possession under the statute of limitations.

Notoriety of a mining possession. Such possession as will ripen into title must amount to notice of claim of ownership; and mining operations, or the working of a lime kiln are more likely to attract attention than the ordinary operations of a farm.

Appeal from the Superior Court of Henderson County. This action was ejectment, brought before the new constitution took effect, and was tried before HENRY, J., upon the report of a referee. The plaintiff had judgment, and defendants appealed. The facts are stated in the opinion of the

court.

MERRIMAN, FULLER & ASHE, for defendants.

MCCORKLE & BAILEY, for plaintiff.

SETTLE, J.

The plaintiff claims title to the lands in controversy under a grant from the State, issued to John Miller, in 1834, and it is admitted that he must recover, unless the defendants who claim under a grant from the State issued to George and Ephraim Clayton in 1836, are protected by a peaceable, open, uninterrupted and adverse possession of seven years. The writ issued on the 10th of March, 1860, the facts (as found by the referee and stated in his award) are that in the month of January, 1853, the defendants put Winfield Fletcher in the possession of the premises in dispute, in order that he might test a vein of rock on the premises, and ascertain whether or not it was a lime vein, and if it proved to be lime, to work it; that in January, 1855, he built a shed, quarried rock, built a kiln, and cut wood to burn it on the land in dispute; that in the month of February, 1853, he burned the kiln, which yielded about five hundred bushels of lime, and having tested the quarry and ascertained it to be lime, he cut wood and quarried rock on the premises for another kiln during the following spring and summer, leaving his tools in his shed during his absence, until the fall of 1853, when he took a written lease from the Claytons, which had been promised in January, 1853, and erected permanent improvements, and that the defendants have been in possession ever since.

The authorities on this subject are collected and revised with care in Loftin v. Cobb, 1 Jones L. 406, and we deduce from them the principle that the possession which will ripen into a title must be indicated by such acts as are sufficient to notify mankind that the party in possession is claiming the land as his own, and must be so repeated as to show that they are done in the character of owner, and not of an occasional trespasser. The leading idea is that there shall be notice to the world, so that any one claiming adversely may have an opportunity to assert his title. The acts of ownership in this case were of a nature calculated to attract more than ordinary notice.

The discovery of a lime quarry and the working of it, like

mining operations, from the nature of things, would be discussed throughout the neighborhood, and attract more attention than the ordinary operations of the farm, and the acts set forth were so connected and continuous as to constitute uninterrupted possession in contemplation of law.

Claim distinguished from color of title. To constitute a bar under the statute of limitations, it is not necessary that the party hold under color of title; it is sufficient if he hold under a claim of right.

Tax deed. A tax deed, though void on its face, may amount to color of title.

Facts amounting to adverse possession. The leasing of quarries and timber by the owner of adjoining land, and taking stone and timber from time to time, or permitting others so to do, for pay, during the statutory period, accompanied by the payment of taxes, all done under color of title and claim of right. Held, to amount to a continued adverse possession.

Appeal from the District Court of Johnson County.

The action was commenced in 1870 for the recovery of lots 1 and 3, section 3, township 81, range 5, in Johnson county. After answer to the petition had been filed, plaintiff, by leave, filed an amended petition in equity, setting up her right to the same property, averring that defendant claimed some right thereto, under some alleged tax title purchase, deed and forecloseure, all of which were void as the amended petition averred; it also averred the taking and selling of large quantities of stone from the premises, etc., and prayed an accounting.

The answer to the amended petition set up the tax title in defendant, and pleads the statue of limitations. Before judgment the plaintiff died and her heirs were substituted. After trial by the court, defendant had judgment, and the plaintiff appealed.

RUSH CLARK and W. C. GASTON, for appellant.

S. H. FAIRALL and BOAL & JACKSON, for appellee.
COLE, J.

There is no controversy but that the plaintiff's first husband entered the land sued for, and that by his death, and the subsequent death of their issue, she became the owner in fee of the government title. Nor is there any controversy as to the legal insufficiency of the tax sale, deed and foreclosure to pass a perfect legal title to the defendant. The whole case is, therefore, rested upon the single question of the statute of limitations.

On January, 1843, Casper Nick, who was the plaintiff's first husband, entered the land in controversy, and on his way home from the land office was drowned. Shortly after his death, and on July 4th, 1843, a child was born to him by the plaintiff, who was named Casper W. Nick. In 1846 the plaintiff was married to John Evans, who died in 1853, and by whom she had two children, both of whom died before this suit was brought. In 1857 the plaintiff was again married to Harvey C. Colvin, with whom she lived until her death, which was after this suit was commenced, and by whom she had two children, who have been substituted as plaintiffs herein. The plaintiff lived in Linn county, Iowa, some eight or ten miles from the land, from the date of its entry up to the fall of 1859, when she removed with her family, including Casper W. Nick, to Texas, where Casper died in the fall of 1861. She removed from Texas to Schuyler county, Illinois, in the spring of 1869, and resided there until her death.

The defendant's title and claims grow out of the following facts: In 1839, James Cavanagh bought of one King, and took possession of a "claim" to about five hundred acres of government land, which included that in controversy here, or