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205 N.C. 177

170 S.E 662

McPherson v. . Williams

Supreme Court of North Carolina

Decided September 20, 1933

Supreme Court of North Carolina · decided 1933-09-20

Cited by 6 later decisions — most recently March 1961

6 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1933-09-20

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*178 Stacy, C. J.

¶1 It is conceded in appellee’s brief that “the burden was upon the defendant to show the easement by prescription, or adverse possession,” the defense being an affirmative one. Power Co. v. Taylor, 194 N. C., 231, 139 S. E., 381. But in this connection it is asserted that “while in disconnected excerpts, it might appear the burden of proof was improperly placed, yet a careful reading of the entire charge will show the jury could not have been misled.” Bechtel v. Weaver, 202 N. C., 856, 164 S. E., 338; Rankin v. Oates, 183 N. C., 517, 112 S. E., 32.

¶2 We have held in a number of cases that the erroneous placing of the burden of proof in respect to a material matter constitutes reversible error. Power Co. v. Taylor, supra.

¶3 True, in the beginning, the plaintiffs had the burden of proof on the issue of trespass, but when the defendant undertook to justify his use of the plaintiffs’ side of the ditch by prescription, or adverse possession, he then assumed the laboring oar. Hayes v. Cotton, 201 N. C., 369, 160 S. E., 453.

¶4 New trial.

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