Sexton v. Bolick ( 1983 )

ARNOLD, Judge.

Defendants contend that the trial court erred in denying their motion for directed verdict. They allege that plaintiffs failed to prove facts or circumstances which would establish that defendants did in fact have a duty to keep their horses from “running at large.” We agree and hold that defendants’ motion for directed verdict should have been granted at trial.

This case was pled and tried in tort. In order to establish negligence on the part of defendants it was imperative that plaintiffs show a breach of some duty. Jenkins v. Stewart and Everette Theatres, Inc., 41 N.C. App. 262, 254 S.E. 2d 776, cert. denied, 297 N.C. 698, 259 S.E. 2d 295 (1979). See W. Prosser, Torts § 30 (4th ed. 1971).

The evidence in the record before us shows that plaintiffs and defendants both had a right to use the property for their own particular purposes. Defendants had been granted permission from Harmon to use the land as grazing pasture for their horses. Plaintiffs were subsequently allowed to use the same land for the purpose of growing Christmas trees, and although that agreement was later reduced to writing there is no evidence that the writing in any way revoked the prior agreement with defendants, or that it was even relevant as between these parties.

In fact, we are unable to determine what rights and duties were bestowed upon plaintiffs by their agreement with Harmon since it does not appear in the record at all. We are bound by the record and find no evidence of any duty on the part of defendants. For that reason defendants’ motion for directed verdict was improperly denied.

Reversed.

Judges WELLS and Eagles concur.