Freeman v. City of Charlotte, 282
| Decision Date | 28 February 1968 |
| Docket Number | No. 282,282 |
| Court | North Carolina Supreme Court |
| Parties | Arthur H. FREEMAN and Lillian S. Freeman v. CITY OF CHARLOTTE, a Municipal Corporation. |
Howard B. Arbuckle, Jr., Charlotte, for plaintiff appellees.
Paul L. Whitfield, Charlotte, for defendant appellant.
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. McLean 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...
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Taylor v. Johnston
...have been considered for whatever probative value it contained. Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529; Freeman v. City of Charlotte, 273 N.C. 113, 159 S.E.2d 327. Although not strongly argued by the parties to this proceeding, we deem it necessary to consider the effect of the ancien......
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