Vance v. Guy, 237.

• Docket Nº: No. 237.
• Citation: 31 S.E.2d 766, 224 N.C. 607
• Case Date: November 08, 1944
• Court: United States State Supreme Court of North Carolina

31 S.E.2d 766
224 N.C. 607

VANCE.
v.
GUY et al.

No. 237.

Supreme Court of North Carolina.

Nov. 8, 1944.

[31 S.E.2d 766]

Appeal from Superior Court, Avery County; Clarence E. Blackstock, Special Judge.

Action by Ed N. Vance against E. C. Guy and others for minerals allegedly wrongfully mined and taken from plaintiff's property. From a judgment for double the value of the minerals as determined by the jury, defendants appeal.

New trial awarded.

Civil action to recover for minerals wrongfully mined and taken from plaintiff's property.

Upon denial of liability and assertion of right, issues of ownership, trespass, wilfulness and damages were submitted to the jury and answered in favor of the plaintiff, the value of the minerals at the mine after separation from the realty being fixed at $80,000.

From judgment under G.S. § 74-32 for double the value of the minerals as determined by the jury, the defendants appeal, assigning errors.

Walter C. Berry, of Bakersville, Burke & Burke, of Taylorsville, Charles Hughes, of Newland and S. J. Ervin, Jr., of Morgantown, for plaintiff, appellee.

[31 S.E.2d 767]

J. V. Bowers, of Newland, Proctor & Dameron, of Marion, John C. McBee, of Spruce Pine, and J. C. B. Ehringhaus, of Raleigh, for defendants, appellants.

STACY, Chief Justice.

This is the same case that was before us at the Fall Term 1943, reported in 223 N.C. 409, 27 S.E.2d 117, with sufficient statement of the facts to which reference may be had to avoid repetition. The first appeal was from a judgment in favor of the defendants. The present appeal is from a judgment in favor of the plaintiff.

The plaintiff claims title to the minerals in question under a deed from the Plumtree School for Boys which purports to convey to the plaintiff in fee simple 375 acres of land in Avery County. This deed was executed and registered in 1925. It recites a consideration of $6000. Plaintiff testified that he had been in possession of the land since the date of his deed, claiming the minerals as well as the surface, and that he had operated three mica mines on the northern portion of it, disclaiming, however, any interest in the minerals on 68 acres of the land. This action was instituted in August, 1941.

It was made to appear on the hearing that while plaintiff's deed ostensibly conveys the land in fee, the title to the mineral rights on the portion here in controversy had previously been reserved and separated from the surface rights by predecessors in title, and plaintiff was therefore remitted to a claim of adverse possession under his deed as color for seven years to establish his right to the minerals in question. Davis v. Federal Land Bank, 219 N.C. 248, 13 S.E.2d 417; Dorman v. Goodman, 213 N.C. 406, 196 S.E. 352; 36 Am.Jur. 432. In this connection, and speaking to the burden of proof, the court instructed the jury that the plaintiff had the burden of the issue, which never shifted, but "when the actor has gone forward and made a prima facie case, the other party is compelled in turn to go forward or lose his case, and in this sense the burden shifts to him." The inexactness of this instruction may well have been the determining factor on the trial, as the plaintiff's claim of adverse possession was sharply contested. Locklear v. Savage, 159 N.C. 236, 74 S.E. 347; 1 Am. Jur. 915.

The defendants were not compelled to go forward or lose their case, simply upon a prima facie showing by the plaintiff. Speas v. Merchants' Bank & Trust Co., 188 N.C. 524, 125 S.E. 398. A "prima facie case" means and means no more than evidence sufficient to justify, but not to compel an inference of liability, if the jury so find. It furnishes evidence to be weighed, but not necessarily to be accepted by the jury. It simply carries the case to the jury for determination, and no more. McDaniel v. Atlantic Coast Line Ry., 190 N.C. 474, 130 S.E. 208. "A prima facie showing merely takes the case to the jury, and upon it alone they may decide with the actor or they may decide against him, and whether the defendant shall go forward with evidence or not is always a question for him to determine"--Varser, J., in Hunt v. Eure, 189 N.C. 482, 127 S.E. 593, 596; Id, 188 N.C. 716, 125 S.E. 484.

The rule as to the burden of proof constitutes a substantial right, for upon its application many cases are made to...