Walling v. . Burroughs ( 1851 )

The case is stated in the opinion of the Court. The plaintiffs and defendants are tenants in common of a tract of swamp land, and the defendants, who are in possession, (61) have cut down and carried to market a large quantity of timber growing on it. The bill is filed for an account. By a decree of the Court made by consent of the parties reference was had to the master to state the account. A report was made to Spring Term, 1851, of the Court of Equity for Martin, to which each party excepted. It is unnecessary to consider any of the exceptions but the first made by the defendant, as that disposes of the case as it is now before us. That exception is: "That the defendants are charged with the value of the timber and some of the shingles as sold, deducting only the actual expenses of getting the same to market and not allowing the defendants anything for their risk and attention to the business, whereas the defendants insist that the proper charge against them would be a fair rent of the timber at the stump." This exception is allowed, and as it goes to the principle of the report, the cause is referred back to the master to take the account. The principle upon which such accounts are to be taken is stated and the authorities cited in Bennett v. Thompson, 35 N.C. 141, as to a trespasser. We do not deem it necessary to do more than to refer to that case. The principle is that the account is to be taken of the value of the timber while growing, as a rent for the timber, this case being between tenants in common.

PER CURIAM. Ordered accordingly.

Approved: Darden v. Cowper, 52 N.C. 211.

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