Lewis v. Butters Lumber Co.
| Decision Date | 12 November 1930 |
| Docket Number | 287. |
| Citation | 155 S.E. 726,199 N.C. 718 |
| Parties | LEWIS v. BUTTERS LUMBER CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Bladen County; Nunn, Judge.
Action by W. E. Lewis against the Butters Lumber Company. From the judgment, defendant appeals, and plaintiff cross-appeals.
No error on plaintiff's appeal, but new trial ordered on defendant's appeal.
Issues of grantee's negligence in removing timber and of wrongful removal held for jury, in grantor's action against grantee under timber deed.
Plaintiff is the owner of a tract of land containing 600 acres, more or less, situate in Bladen county, N. C.
On September 19, 1924, plaintiff, for and in consideration of the sum of $1,000, sold, and by deed executed by himself and his wife conveyed to the defendant, all the pine, oak cypress, ash, poplar, and gum timber on said land, above the size of ten inches in diameter on the stump, when cut, with certain exceptions set out in said deed, "together with the right and privilege for and during the period of three years from February 24th, 1926, through themselves, their successors, agents and servants, to enter upon said land or any other lands owned by them and to pass and repass over the same, at will, on foot or with teams and conveyances, to cut and remove said timber, and construct and operate any roads tramways or railroads, houses and tenements and remove same at will, over and upon said lands as the party of the second part, its successors and assigns may deem necessary for cutting and removing said timber, and to use such trees underwood, dead and down timber, and dirt on said land as may be needed in the construction and repair of said roads tramways and railroads, to run and operate its locomotives and to use and operate any railroad that the grantee herein or their successors or assigns may construct, and to have right of way in fee simple over said land above described, or any other land owned by them, for a permanent railroad that may be constructed by said grantee, its successors or assigns, the said right of way to be located by said party of the second part, its successors and assigns.
"To have and to hold the said timber, as above decribed, together with the privileges and rights of way herein granted, to party of the second part, its successors and assigns, during the period of time above named."
During the latter part of January, 1928, the defendant entered upon said land, and cut and removed therefrom the timber conveyed to it by plaintiff. Defendant completed the cutting and removal of said timber within about six months from the date on which it began to cut the said timber.
For the purpose of removing said timber when cut, defendant located on said land a right of way on which it constructed a tramway or railroad. It has maintained said tramway or railroad since the 24th day of February, 1929, and continues to operate the same, notwithstanding the three years during which defendant had the right and privilege, under said deed, to enter upon said land, and to cut and remove therefrom the said timber, expired on February 24, 1929.
Plaintiff alleged in his complaint that, while engaged in cutting and removing said timber, defendant wrongfully and unlawfully caused trees and timber standing and growing near certain pasture fences on said land, when cut, to fall upon said fences, thus breaking down and injuring the same, thereby causing plaintiff damage.
Plaintiff further alleged in his complaint that, while engaged in cutting and removing said timber, defendant wrongfully and unlawfully caused trees and tree tops, when cut, to fall into and fill up the ditches and drains on said land, thus damming the water in said ditches and drains and injuring said land, thereby causing plaintiff damage.
Plaintiff further alleged in his complaint that, while cutting and removing said timber, defendant wrongfully and unlawfully removed lightwood from said land, thereby causing plaintiff damage.
Plaintiff further alleged in his complaint that, by the maintenance and operation of the tramway or railroad constructed by the defendant on the right of way located by it on his land, since February 24, 1929, defendant has wrongfully and unlawfully trespassed on said land, thereby causing plaintiff damage.
Each and all of the allegations of the complaint on which plaintiff demanded judgment that he recover of the defendant in this action are denied by the defendant in its answer.
The issues arising on the pleadings were answered by the jury as follows:
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