Bishop v. Reinhold

• Decision Date: 07 February 1984
• Docket Number: No. 8228SC1353,8228SC1353
• Parties: Douglas BISHOP, and wife, Peggy Bishop v. Marie C. REINHOLD, Individually and as the Executrix of the Estate of Ernest M. Reinhold.
• Court: North Carolina Court of Appeals

Page 298

311 S.E.2d 298

66 N.C.App. 379

Douglas BISHOP, and wife, Peggy Bishop v. Marie C. REINHOLD, Individually and as the Executrix of the

Estate of Ernest M. Reinhold.

No. 8228SC1353.

Court of Appeals of North Carolina.

Feb. 7, 1984.

Redmond, Stevens, Loftin & Currie by Gwynn C. Radeker, Asheville, for plaintiffs-appellees.

Adams, Hendon, Carson & Crow by George Ward Hendon, Asheville, for defendants-appellants.

BRASWELL, Judge.

In the construction of their new dwelling house the defendants Reinhold partially erected the house on the adjoining, unimproved, lot of the plaintiffs, the Bishops. In this action for trespass the Bishops sue for removal of the building. The jury by its verdict found that the defendants had committed a wrongful trespass, that the deed from the Reinholds to the Bishops did not contain a mutual mistake of the parties or a mistake or inadvertence of the draftsman as to the description of the lot, and did award the Bishops $3,250 in damages. The judgment decreed that the encroachment constituted a continuing trespass, that the $3,250 represented "damages for such wrongful trespass to the date of trial," and that jurisdiction was retained in the trial court for a future trial which would assess "rental value (or its equivalent)" from the date of the first trial to the date of the future, or second, trial, and that the future jury should "ascertain the reasonable cost of removing the structure" from the Bishops' premises. Defendants appeal.

Of the seven questions presented by the Reinholds in their brief, we find that two have merit. First, it was error for the trial court to fail to apply the three-year statute of limitations for a continuing trespass, G.S. 1-52(3), to the undisputed evidence, at the close of all the evidence. Second, it was error for the trial court to allow into evidence any testimony about the Bishop's travel expenses to attend court (or deposition hearing), and error to allow any evidence of the amount of the survey fees. No special damages were pled, nor was there any motion to amend the pleadings at the close of the evidence to conform to the evidence presented. For these errors which were prejudicial to a part of the defendants' case, we grant a partial new trial, as further reflected.

To understand these assignments of error it is essential to review the factual history of the parties' dealings. Douglas Bishop was a Colonel in the U.S. Air Force and during the years in question was stationed in widely-scattered places. In early spring of 1972 the Bishops, then living in Texas, became interested in buying real property in western North Carolina. E.M. Reinhold, husband of codefendant Marie C. Reinhold, who had several lots for sale in their "Town Mountain Estates," made contact with the Bishops. [Mr. Reinhold died between the date of trial and before judgment was filed. His wife, the other defendant, became his executor, and by court order was made a party in the representative capacity for him.]

After viewing various lots the Bishops agreed to purchase a particular lot and signed a sales contract prepared by Mr. Reinhold. Later, Mr. Reinhold informed the Bishops that he and his wife had promised that particular lot to a relative, and stated that if the Bishops would agree to tear up the sales contract the Reinholds would instead sell to them a lot east of the Reinholds' residence, which lot the Bishops had seen during their trip to Buncombe County. The Bishops did agree, and a new sales contract was signed on 7 July 1972. The defendants Reinhold caused a deed to be prepared dated 7 July 1972 and recorded in Book 1065 at Page 85.

In September of 1973 Colonel Bishop returned to the Town Mountain Estates. He noticed many changes in the area surrounding his lot. A swimming pool had been constructed to the left side of his lot upon the Reinholds' old residence lot. Adjoining the right side of his lot Colonel Bishop saw that a new dwelling house had been built, which by conversation he discovered to be the new residence of the defendants Reinhold. [They had built and moved from the left to the right of the plaintiffs.]

In 1978 the Bishops decided to sell their lot in Town Mountain Estates. Through a local realtor a potential buyer was located. To satisfy the requirements of the new buyer the Bishops had the lot surveyed. In May 1980 the surveyor completed his work, tendered the plat, and billed the Bishops $400 which was paid. The sale fell through upon the discovery by survey that the Reinholds' new home had been partially built on the Bishops' lot. Damages resulting from the Bishops' present inability to sell the lot as well as their travel expenses for two trips from Hawaii, the place where plaintiffs were living when the lawsuit was filed on 11 September 1980, were allowed into evidence.

While testifying Colonel Bishop stated that during his 1978 visit to the lot that "[i]t had not changed any from what I remembered it when I was there in ' 73, so it was still basically the same." George Keller, a neighbor who owned a lot on the south of plaintiffs' lot and across the street, testified that he realized in 1973 when construction began that the Reinholds were building on the plaintiffs' lot. Keller stated, "just by eye or even by tape it was easy to ascertain that Mr. Reinhold was building" on the plaintiffs' land, but the Reinholds continued to build. As to why he did not do something about it earlier, Colonel Bishop replied, "I first did something about it when I first realized that there was an encroachment on my property when the Anders survey [May 1980] revealed the encroachment." Colonel Bishop did not object in 1972-73 because: "[W]hy should I object? At that time when [Mr. Reinhold] told me that's where [the line] was located, I had no reason not to believe it."

A continuing trespass is a peculiar animal in the law. The difficulty arises as to whether a plaintiff may maintain successive actions, as the physical trespass continues, which will subject a defendant to multiple suits, or whether he must recover all damages, past, present, and future, in a single action. This determination naturally controls the running of the statute of limitations. W. Prosser, Handbook of the Law of Torts § 13 (4th ed. 1971). Ordinarily, each day the trespass continues a new wrong is committed, which in turn bears a new statute of limitations.

At the outset the question has been raised as to whether this appeal is interlocutory. We answer no, because any appeal in a continuing trespass case that has awarded damages for only past acts of trespass is final as to the subject covered, while damages awarded at any subsequent trial, although stemming from the same continuing trespass, are based on further or continuing wrong as the encroachment remains. However, "in order to avoid a multiplicity of actions at law for damages," it lies within the province of the trial judge in a continuing trespass case to grant "equitable relief in the form of a permanent injunction" as a proper remedy. Conrad v. Jones, 31 N.C.App. 75, 78, 228 S.E.2d 618, 619 (1976).

In the case of an actual encroachment, such as a building on another's land, North Carolina, in accord with the majority view, holds that a plaintiff is limited to a single recovery of all damages. Prosser supra. See also Cherry v. Canal Co., 140 N.C. 422, 53 S.E. 138 (1906). But compare Phillips v. Chesson, 231 N.C. 566, 58 S.E.2d 343 (1950). The complaint here is in accord with this view as factually it seeks only the removal of the building itself from the lot. While the prayer for relief does mention damages--"such damages as Plaintiffs may be entitled"--"[t]he nature of plaintiff's action and the relief to which plaintiff is entitled are to be determined by the facts alleged in the complaint and established by the evidence, and not the prayer for relief." 10 Strong, N.C.Index 3d, Pleadings, § 7 (1977). In Lightner v. Raleigh, 206 N.C. 496, 174 S.E. 272 (1934), the Supreme Court stated that whether a trespass was continuing or recurring depended on whether the damages could be ascertained and recovered in a single action. If the damages cannot be ascertained all at once, then successive actions may be brought to recover damages as they accrue. Here, the defendants' house has been located on the Bishops' lot for seven years and we can see no reason why all relief cannot be granted in this one action, and in one trial, as the rule indicates.

In a factually similar continuing trespass case, Terry v. Jim Walter Corp., 8 N.C.App. 637, 175 S.E.2d 354 (1970), a house was wrongfully constructed on the plaintiffs' land by the defendant. Although the defendant's appeal was based on the measure of damages used in the judge's instructions to the jury, the court added that "since the defendant is not a public authority or clothed with any right of eminent domain, the plaintiffs, as the landowners, could elect either to keep the house on their lot or demand that the defendant remove it and seek damages for the wrongful trespass." Id. at 642, 175 S.E.2d at 357. The Terry court also seems to suggest that all damages must be recovered in one action. We hold, therefore, that the Bishops having chosen to sue for the removal of the house should not be allowed to maintain successive actions.

We now turn to a closer look at the statute of limitations (G.S. 1-52(3)). It provides that an action must be brought within three years.

For trespass upon real property. When the trespass is a continuing one, the action shall be commenced within three years from the original trespass, and not thereafter.

In construing this statute our Supreme Court said in Sample v. Lumber Co., 150 N.C. 161, 165-66, 63 S.E. 731, 732 (1909):

True, the statute declares that actions for trespass on real estate shall be barred in three years, and when the trespass is a continuing one such actions shall be commenced within three years from the original...