Frisbee v. Town Of Marshall

• Decision Date: 03 May 1898
• Court: North Carolina Supreme Court
• Parties: FRISBEE. v. TOWN OF MARSHALL.

30 S.E. 21

122 N.C. 760

FRISBEE.

v.TOWN OF MARSHALL.

Supreme Court of North Carolina.

May 3, 1898.

Trespass—Lands—Evidence—Damages.

1. In an action for trespass upon land, plaintiff offered to show that she had been in possession, cultivating and paying taxes on the land, since her husband's death, in whom the title was. Dower had never been set apart to her, and she had never sued therefor. The evidence was rejected. Held error.

2. The court instructed that the burden wason plaintiff to show that she was the owner of the land, before she could recover damages for trespass thereon. Held error, since it was only necessary to show possession.

3. The damages, in an action by one in possession, for trespass upon land, must be limited to such injuries to the possession as diminish its profits and uses, considering the damages after the action commenced, so far as resulting from the original trespass.

Montgomery, J., dissenting.

Appeal from superior court, Madison county; Brown, Judge.

Action by Rachael Frisbee against the town of Marshall. Judgment for defendant. Plaintiff appeals. Reversed.

W. W. Zachary, for appellant.

J. M. Gudger, Jr., for appellee.

FAIRCLOTH, C. J. From the confused record in this case, we have had some difficulty In ascertaining the facts. As we understand them, they are as follows: (1) No summons is found in the transcript, but we assume that It issued before November term, 1892, when the original complaint was filed, alleging that defendant, before and after May 1, 1890, appropriated plaintiff's land for township purposes, and pulled down plaintiff's fence, trees, etc. Answer filed at August term, 1894, denies the allegations. Amended complaint filed at spring term, 1897, alleges that between May 1, 1890, and the bringing of this action, defendant pulled lown a rock wall on plaintiff's land, which protected a house and store from the overflow of Frisbee branch, and that by such removal of wall, and by negligent obstruction of said branch at the time mentioned, the water was turned, out of its natural course, onto plaintiff's land, and damaged the plaintiff's premises. All of which was denied in the second answer. (2) That Frisbee branch separated two tracts of land, that plaintiff's husband had a recorded deed for the tract on the north side, and that plaintiff resides on the tract on the south side of the branch, which is not covered by said deed. The court submitted the issues: "(1) Did the defendant's agents wrongfully trespass upon and damage a certain tract of land on northwest side of Frisbee branch, the property of the plaintiff? Ans. No." "(3) Did the defendants wrongfully trespass upon and damage a certain tract of land on southeast side of Frisbee branch, the property of the plaintiff? Ans. No." It was admitted that title was out of the state. There was no plea of liberum tenementum, sole seised, nor any plea of title or possession in the defendant. "Upon first issue, plaintiff offered evidence tending to prove: That she was married to Elza Frisbee, who died In 1865, leaving three children, —Malinda, Lafayette, and John, Frisbee. Lafayette died without heirs. Malinda and John resided with their mother upon the land referred to in third issue, which Is contiguous to the land referred to in first issue, being divided by Frisbee branch. That as to land on north side said branch, referred to in first issue, plaintiff testified that during her husband's life she gave one McNew the money to pay for same, and he brought back to her the following deed, to wit, a deed in fee simple from I. B. Sawyer, clerk and master in equity, Buncombe county, to Elza Frisbee, dated 1862. The said deed covers the land referred to In issue No. 1, and has long since been duly recorded. That said money was her own property. That after her husband's death she removed to the land on southeast side said branch, referred to in issue 3, and resided there from 1865 to this date. That she took possession of the tract referred to in issue No. 1, and had cultivated and paid taxes on it, and been in possession of it, ever since. That her daughter Malinda has lived with her, 'off and on, ' all the time. That the plaintiff had never had any dower set apart to her, and had never brought suit for dower, nor had she sued her children to have them declared trustees to her use for said land. Malinda Frisbee testified that she had never had anything to do with the land, that she supposed it was her father's land, but that her mother had full control of it, and she had not set up any claim, so far as she was concerned. Under the fourth issue, relating to damage to the land on southeast side of the branch, the plaintiff offered to prove that, about a year...