Lee v. Lee

Decision Date29 September 1920
Docket Number113.
PartiesLEE v. LEE.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Harnett County; Connor, Judge.

Action by Leander Lee against G. M. Lee. Judgment for plaintiff, and defendant appeals. Judgment modified in accordance with plaintiff's waiver by striking therefrom the recovery of damages, and, as modified, affirmed.

This is an action to recover damages for trespass on land, by entering thereon and cutting valuable timber trees. The plaintiff alleges that he is the owner in fee of the land described in the complaint and in possession of the same which allegation is denied by the defendant. It is not denied that the plaintiff was the owner of the land for life at the commencement of the action. At the conclusion of the evidence the defendant moved for judgment of nonsuit on the ground that the action is one to recover damages for injury to the inheritance, and that the plaintiff as life tenant cannot maintain the action. The motion was overruled, and the defendant excepted. There was a verdict and judgment for the plaintiff, and the defendant appealed.

One in possession of land may recover nominal damages for wrongful entry upon his possession, though he suffers no substantial damage.

E. F Young and Clifford & Townsend, all of Dunn, for appellant.

Godwin & Williams, of Dunn, Baggett & Mordecai, of Lillington, and C. L. Guy, of Dunn, for appellee.


There is authority for the position that a tenant for life may recover all of the damages to the inheritance, but this does not seem to be the prevailing rule (Rogers v. Atlantic Co., 213 N.Y. 246, 107 N.E 661, L. R. A. 1916A, 787, Ann. Cas. 1916C, 877, and note) although it was held in Wheeler v. Telegraph Co., 172 N.C. 11, 89 S.E. 793, that one in possession, nothing else appearing as to title, may recover the entire damages against a wrongdoer, but, however this may be, one in possession, may, in any event, recover nominal damages for the wrongful entry into the land, although he suffers no substantial damage. Frisbee v. Marshall, 122 N.C. 763, 30 S.E. 21. This being true, the plaintiff as life tenant can maintain this action for an entry upon the land of which he was in possession, and he has in this court waived all claim to recover substantial damages, and has agreed that his recovery of damages be stricken from the judgment.

The pleading is sufficient, as it not only alleges...

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