Winston Brick Mfg. Co v. Hodgin

• Decision Date: 02 December 1925
• Docket Number: (No. 360.)
• Citation: 130 S.E. 330
• Parties: WINSTON BRICK MFG. CO. v. HODGIN et al.
• Court: North Carolina Supreme Court

130 S.E. 330

(190 N. C. 582)

WINSTON BRICK MFG. CO.

v.HODGIN et al.

(No. 360.)

Supreme Court of North Carolina.

Dec. 2, 1925.

[Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Interest (In Property).]

Appeal from Superior Court, Forsyth County; Lyon, Judge.

Action by the Winston Brick Manufacturing Company against George D. Hodgin and another. Judgment for plaintiff against the named defendant, and he appeals. New trial.

The plaintiff alleged that on February 2, 1923, it contracted, with defendants, for the purchase of a tract of land, containing 6 acres, which was on said date conveyed to plaintiff by deed in Book 215, p. 2T, of Forsyth county, with the following description:

"Beginning at an iron stake, Joshua Sills corner, and runs thence N. 88 degrees 00 W., about 382.7 feet to a stake in the east side of a new 30-foot road; thence with said road S. 0 degrees 45 W. about 57S.0 feet to a stake; thence S. 88 degrees 00 E., about 505.7 feet to a stake in Joshua Sills' line; thence N. 5 degrees 30 minutes E., about 90.0 feet to a stone: thence N. 2 degrees 00 E., 222.0 feet to a stone; thence N. 2 degrees 00 E., 266.4 feet to an iron stake, the place of the beginning, and containing 6.0 acres more or less. This property will have a road platted to Walker town or paved highway."

The plaintiff also alleged that the defendants designated and stipulated a road "a way of necessity" over their own land to the public highway, the same to be used for the benefit of the plaintiff and described as indicated in the deed.

It was also alleged that plaintiffs spent some money in repairs on the road, and that on August 15, 1923, the defendants closed the road to the injury of plaintiffs, and, though demanded, the defendants had not reopened this road, and that plaintiff's brick business was broken up and loss and damage resulted therefrom.

The defendants admitted that they sold the 6-acre tract of land to plaintiff, with quoted sentence in deed, and that they had designated and stipulated a road over their own land to the public highway to be used for the benefit of the plaintiff, and described as set out in the deed, and that they provided a roadway, and that there still is a roadway to plaintiff's property, and denied all other material allegations.

The jury rendered the following verdict:

"(1) What damages, if any, is the plaintiff entitled to recover against the defendant George D. Hodgin for obstructing road to the plaintiff's brick plant? Answer: $900.

"(2) What damages, if any, is the plaintiff entitled to recover against the defendant Effie Hodgin for obstructing road to the plaintiff's brick plant? Answer: Nothing."

J. H. Whicker, of Winston-Salem, for appellant.

VARSER, J. The pleadings disclose an admitted contract between the defendants and the plaintiff in "that the defendants designated and stipulated a road, a 'way of necessity' over their own land, to the public highway, the same to be used for the benefit of the plaintiff and described as follows: 'This property will have road platted to Walker-town or paved highway, ' " and defendants allege that "they provided a roadway and there is still a road to plaintiff's property." Plaintiff's allegation that the defendants closed this "way of necessity" in August, 1923, is de-nied. and the allegations of damages flowing to the plaintiff are also denied. The issues submitted are not objected to and the verdict has eliminated the femme defendant.

The appellant assigns error for that the trial court admitted evidence tending to locate a 30-foot road called for in the deed, beginning "at an iron stake, Joshua Sills' corner;" and stating how this road was closed up, and the statement that the plaintiff had no other way out, together with the condition of plaintiff's brick machine at the time the road was closed, and, 4 months later, tending to show that 4 months after the closing of the road the machinery was in bad condition, rusty because it could not be used for lack of a way to approach the mill site, and that the plaintiff had orders for brick when the road was closed, and in approximating the loss of plaintiff's machinery and tools, in stating that defendant Hodgin told plaintiff he was planning to have the railroad make another crossing and have another road by a man's house on the railroad side, and in declining to allow the defendant to introduce the plat.

The phase of these exceptions necessary to be considered now is the contention that the admission of this evidence tended to prove a contract different from that admitted in the pleadings and described "as a road platted to Walkertown or paved highway." The evidence thus admitted tends to limit the location of the road in controversy to the 30-foot road mentioned in the description when the deed refers "to a stake in the east side, of a new 30-foot road"; whereas, the road declared upon and admitted is the road which the "property will have platted to Walker-town or paved highway." The description in calling for the new 30-foot road was using the language for the purpose of description, and the parties have admitted that the road which the parties contracted for is that road referred to as going "to Walkertown or paved highway.". The Walkertown highway and "the paved highway" are...