Tillery v. Whiteahlle Lumber Co

• Decision Date: 18 October 1916
• Docket Number: (No. 296.)
• Citation: 90 S.E. 196
• Parties: TILLERY et al. v. WHITEAHLLE LUMBER CO.
• Court: North Carolina Supreme Court

(172 N.C. 296)

90 S.E. 196

TILLERY et al.

v.WHITEAHLLE LUMBER CO.

(No. 296.)

Supreme Court of North Carolina.

Oct. 18, 1916.

Appeal from Superior Court, Columbus County; Stacy, Judge.

Action by L. F. Tillery and others against the Whiteville Lumber Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Macrackan & Greer, of Whiteville, and J. D. Bellamy & Son, of Wilmington, for appellants.

Rountree, Davis & Carr, of Wilmington, and Schulken, Toon & Schulken, of Whiteville, for appellee.

WALKER, J. This is an action to recover damages for a trespass committed by cutting trees on plaintiffs' land, and removing them therefrom; the amount demanded being $2,045.40. The decision of the case turns upon the statute of limitations. If the general statute barring such actions, after the lapse of 3 years from the time the cause of action arose, or in this case from the time of cutting the timber, applies, we are of the opinion that the plaintiffs cannot maintain the action, and the ruling of the court was correct.

As the defendant pleaded the statute, the burden was upon the plaintiffs to show that their suit was brought within 3 years from the time of the accrual of the cause of action, or, in other words, that it is not barred. This has been the prevailing rule in this court, as to the burden of proof insuch cases. Moore v. Westbrook, 156 N. C. 482, 72 S. E. 842, Ann. Cas. 1913A, 168; Sprinkle v. Sprinkle, 159 N. C. 81, 74 S. E. 739; Ditmore v. Rexford, 165 N. C. 620, 81 S. E. 994.

G. L. Holmes testified that when he measured the stumps in the woods, they indicated that the timber had been cut about 3 years before, and that J. K. Ward and G. L. Butler helped him to measure the timber. He did not state the time when he measured it, but J. K. Ward testified that the timber was cut 10 or 12 years ago, or before the trial, which would fix the time of measuring the timber some years before the suit was commenced. Holmes, Butler, and Ward were witnesses of the plaintiffs. The only evidence from which any reasonable inference can be drawn as to the time of cutting the timber is that of J. K. Ward, which fixes the time in the year 1904 or 1906, and if his evidence is considered with that of Holmes, and if the latter was correct when he stated that, at the time he measured the timber, the appearance of the stumps indicated that it had been cut about 3 years, the timber must have been measured in the year 1907 or 1909, or about that time. But if the testimony in regard to the time of the cutting is so uncertain or indefinite that the date cannot be determined, it is the fault of the plaintiffs, as the burden was upon them of making it sufficiently certain for the jury to pass upon it and ascertain the time that had elapsed since the cutting of the timber, so as to determine whether or not the plaintiffs' cause of action was barred. But It seems to us that if we construe the testimony of Holmes and the testimony of Ward together, or even separately, it is clear that more than 3 years had run since the accrual of the cause of action before this action was begun. The statute, therefore, bars the action, if it applies at all, to a cause of action prosecuted by the plaintiffs.

It is contended by the plaintiffs that the statute does not run against them by reason of Revisal, § 4048, which provides that:

"No statute of limitations shall affect the title or bar the action of the state board of education, or its assigns, unless the same would protect the person holding a claim adversely to [against] the state."

The defendants insist that neither the section cited,...