Walling v. Burroughs

• Decision Date: 31 December 1851
• Citation: 43 N.C. 60,8 Ired.Eq. 60
• Court: North Carolina Supreme Court
• Parties: THERESA WALLING et al. v. ANTHONY BURROUGHS et al.

8 Ired.Eq. 60

43 N.C. 60

THERESA WALLING et al.

v.ANTHONY BURROUGHS et al.

Supreme Court of North Carolina.

December Term, 1851.

In an account between tenants in common of land, used for getting timber, the value of the timber, while growing, is to be taken as the rule of valuation.

See the case at law decided at this term, Bennett vs. Thompson, 13 Ire. 141.

Cause removed from the Court of Equity of Martin County, at the Fall Term, 1851.

The case is stated in the opinion of the Court.

Rodman and Donnell, for the Plaintiffs .

Biggs and Moore, for the defendants .

NASH J.

The plaintiffs and defendants are tenants in common of a tract of Swamp land: and the defendants, who are in possession, have cut down and carried to market a large quantity of timber growing on it. The bill is filed for an account. By a decree of the Court made by consent of the parties, reference was had to the master to state the account. A report was made to Spring Term 1851, of the Court of Equity for Martin County, to which each party excepted. It is unnecessary to consider any of the exceptions, but the first made by the defendant, as that disposes of the case as it is now before us. That exception is: “That the defendants are charged with the value of the timber and some of the shingles as sold, deducting only the actual expenses of getting the same to market, and not allowing the defendants any thing for their risk and attention to the business: whereas the defendants insist, that the proper charge against them would be a fair rent of the timber at the stump.” This exception is allowed; and as it goes to the principle of the report, the cause is referred back to the master, to take the account. The principle upon which such accounts are to be taken is stated, and the authorities cited, in the case of Bennett v. Thompson, decided at this Term, as a trespasser--we do not deem it necessary to do more than to refer to that case. The principle is that the account is to be taken of the value of the timber while growing, as a rent for the timber--this case being between tenants in common.

PER CURIAM. Ordered accordingly.