Freeman v. City of Charlotte , 273 N.C. 113 ( 1968 )

159 S.E.2d 327 (1968) 273 N.C. 113

Arthur H. FREEMAN and Lillian S. Freeman
v.
CITY OF CHARLOTTE, a Municipal Corporation.

No. 282.

Supreme Court of North Carolina.

February 28, 1968.

Howard B. Arbuckle, Jr., Charlotte, for plaintiff appellees.

Paul L. Whitfield, Charlotte, for defendant appellant.

BOBBITT, Justice.

Defendant, in its brief, presents this question for decision: "Did the court err in overruling defendant's motion of nonsuit at the close of plaintiffs' evidence, renewed at the close of all the evidence, in failing to charge the jury as to the burden of proof on the plaintiffs where title to real estate is in issue, and in signing and entry of judgment?"

When one wrongfully enters upon the land of another and cuts trees thereon, the owner of the land has an election of remedies. Andrews v. Bruton, 242 N.C. 93, 96, 86 S.E.2d 786, 789, and cases cited. Plaintiffs elected to sue for permanent damage to their 7.05-acre tract. With reference to the third (damages) issue, the court instructed the jury: "The measure of damages for the wrongful trespass upon realty in the cutting and removing timber is the difference in the value of the land immediately before and immediately after the trespass." Plaintiffs' evidence as to damages was directed towards the difference between the reasonable market value of the 7.05-acre tract immediately before and immediately after the alleged trespass thereon by defendant.

Admittedly plaintiffs failed to prove their title to the 7.05-acre tract by any method approved in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142, and decisions in accord therewith. On account of such failure, defendant contends the court erred (1) in the denial of its motion(s) for judgment of nonsuit, and (2) in the failure to instruct the jury that plaintiffs were required to establish their title by such method.

Much of the discussion in the briefs bears upon whether plaintiffs were required to establish their title according to the rules applicable in an action in ejectment or of trespass to try title. However, disposition of the present appeal does not depend upon the answer to that question.

Arthur H. Freeman, one of the plaintiffs, and each of three other witnesses, testified, without objection, that plaintiffs were the owners of the 7.05-acre tract. The admissibility of this testimony not having been challenged, it must be treated as before the jury with all its probative force. Lambros v. Zrakas, 234 N.C. 287, 66 S.E.2d 895; Durham v. Mc-Lean Trucking Co., 247 N.C. 204, 207, 100 S.E.2d 348, 351, 68 A.L.R.2d 349; Harriet Cotton Mills v. Local Union No. 578, 251 N.C. 218, 229-230, 111 S.E.2d 457, 464, 79 A.L.R.2d 646; Stansbury, N. C. Evidence, Second Edition, § 27. This evidence was sufficient to warrant the submission of the first issue and to support the jury's affirmative answer thereto. Skipper v. Yow, 249 N.C. 49, 56, 105 S.E.2d 205, 210, and cases cited.

One of the witnesses for defendant, testifying on direct examination, pointed out where he lived "in relation to the plaintiffs' 7.05-acre tract," and referred to the cutting of timber upon an adjoining tract owned by his sister "about the same time that the timber was cut on the Arthur Freeman tract." The only other witness for defendant, testifying on direct examination, stated he was aware "that Mr. Arthur Freeman's three acres of trees were cut to ground level." Defendant offered no evidence to support its allegation "that plaintiffs granted specific permission to the defendant to enter and cut timber on their property." The only evidence offered by defendant tended to minimize the damage to the 7.05-acre tract as a result of the cutting and removal of timber therefrom.

Exceptions to the admission over defendant's objection of certain documents are not brought forward and assigned as error. The only reference thereto in defendant's brief bears upon their insufficiency to warrant submission of the first issue to the jury. "Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him." Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810.

Defendant having failed to show prejudicial error, the verdict and judgment will not be disturbed.

No error.

HUSKINS, J., took no part in the consideration or decision of this case.