257 N.C. 337 | N.C. | 1962
Respondents in the record have a grouping of their exceptions at the end of the charge to the jury, and before the judgment and appeal entries, but the grouping of their exceptions contains no language that they assign the matters or things referred to in their exceptions as error.
However, we will discuss their exception to the denial by the court of their motion for judgment of involuntary nonsuit made at the close of all the evidence. G.S. 1-183.
Respondents first contend that their motion for nonsuit should have been allowed for the reason that all the evidence shows that the Bertie, Hertford, Northampton Drainage District No. 1 is an improvement district as defined by G.S. 156-62, 5, but that so far as their lands in the district are concerned it is a reclamation district. They contend second their motion should have been allowed for the reason that thei'e is no affirmative evidence that the drainage district will benefit their lands therein.
The first contention is without merit. The preliminary report of the board of viewers states that the drainage district will be an improvement district, and the clerk’s order decreeing the establishment of Bertie, Hertford, Northampton Drainage District No. 1 states it is an improvement district. The record shows that during the trial before Judge Paul and the jury petitioners and respondents entered into a stipulation “that the Drainage District contains the lands of Weyerhaeuser Company and North Carolina Pulp Co., is an improvement district as described in the statute.” G.S. 156-71 authorized the engineer and board of viewers to personally examine the land in the drainage district, and classify it with reference to the benefit it will receive from the construction of the drainage district. They were authorized by the statute to classify the land benefited in five classes. The land receiv
It seems manifest that respondents elected to try their case in the lower court on the theory that Bertie, Hertford, Northampton Drainage District No. 1 was an improvement district in respect to all their lands in the district, and now they want to change their attitude with respect thereto on appeal, and contend that so far as their lands in the drainage district are concerned it is a reclamation district. Such a change of position with respect to a material point between the trial and the Supreme Court will not be permitted. The appeal, ex necessitate, must follow the theory of the trial in the court below. Lyda v. Marion, 239 N.C. 265, 79 S.E. 2d 726; Leggett v. College, 234 N.C. 595, 68 S.E. 2d 263; Hargett v. Lee, 206 N.C. 536, 174 S.E. 498.
It is expressly provided by G.S. 156-65 that if the court shall determine that there is any land included in a proposed drainage district, established thereunder, that will not be benefited by the establishment of the district, such land shall be excluded from the drainage district.
In O’Neal v. Mann, 193 N.C. 153, 161, 136 S.E. 379, 383, it is said: “Only lands which are benefited are subject to assessments; but all lands included in the district, which are benefited, are subject to assessments, the amount of the assessment upon the land of each owner being determined by the benefit which the said land receives.”
Evidence offered by Bertie, Hertford, Northampton Drainage District No. 1 tends to show that on all of respondents’ tracts of land Nos. 181, 273, and 545, there is some growing timber, and no farm crops, and that respondents are engaged in the business of growing timber. C. R. Friddle, who works for the Soil Conservation Unit Service of Hertford County, a witness for the drainage district, testified on cross-examination: “I saw Coxville soil on each tract [tracts 181, 273, and 545]. It is adapted to the growing of timber when properly drained.” Emphasis ours. Joe Covington, found by the court, without objection, to be an expert scientist in the classification of soils, testified
TRACT NO. 181
This tract of land is composed of 262 acres, is located on the road from Aulander to Rich Square, and is classified as follows: 30 acres “Class B,” 4 acres “Class C,” and 228 acres “Class D,” by the board of viewers in their report filed 20 June 1961. Respondents do not challenge this classification of the 30 acres as “Class B.” In respondents’ exceptions to the classification of their lands in the final report of the board of viewers on 20 June 1961 they stated: “As to the 30 acres in Class B, this classification is not challenged.” In respondents’ exceptions to the report of the board of viewers filed with the clerk on 30 October 1961 it is stated: “These respondents admit that approximately 35 acres of this Tract No. 181 will receive some trace of benefit if the lateral entering the east end of said land along an old ditch is constructed.” In these exceptions respondents further state in effect that the said 35 acres is not sufficiently drained. This tract is a pocosin type land. The only ditch on it of any consequence is very much clogged up. Much of the area is full of reeds. One of the proposed laterals of the drainage district will go up the ditch about 1500 feet. The natural drainage of this tract is in the direction of this proposed lateral. Water was found standing in the ditch and in ruts on the back of the tract. The few drainage outlets were clogged up, and unable to take care of drainage in a normal manner. Coxville silt loam is dominant on this tract, which is identified as poorly drained. Thomas W. Rivers, held by the court, without objection, to be an expert civil engineer specializing in drainage, testified for the drainage district: “In the vicinity of that ditch, and on either side, there is a large area that was covered with weeds, reeds, brambles; there were numerous tall dead snags where trees had died, and it was all quite flat. In that particular area there was on the back of the tract a growth of timber, of pines, quite a lot of reeds. * * * There is a cleared area that leads away from these road ditches and in which when I was there we found quite a lot of; a large accumulation of water, debris, and collection of materials that you get when water runs off of surface areas.” William S. Grimes of the Hertford County Health Department testified for petitioners that when he went on Tract 181 he found mosquito larvae there.
TRACT NO. 273
This tract of land consists of 696 acres which are classified as follows: 52 acres “Class B,” 18 acres “Class C,” 411 acres “Class D,” and 215 acres “Class E,” by the board of viewers in their report filed
TRACT NO. 545.
This tract consists of 81 acres, and is classified by the board of viewers in their report filed 20 June 1961 as follows: 23 acres “Class C,” and 58 acres “Class E.” This tract of land is of a pocosin type, is flat, and has no drainage whatever. It had been burned over. Some type of equipment had been used to break up the land. There is an old ditch on the back side pretty well clogged up. Herbert Jenkins, Jr., testified for the drainage district:
“I know that some of Tract 545 has been used for row crop cultivation. How often and how long duration these periods the water will stand on 545 would depend on what kind of year we have. With a fall like the one we have just had, you could not find water standing there except in the ruts on Tract 545 but in a normal year there were a very few times you could go on this tract without finding some water standing. * * *
“* * * All of the water on tract 545 goes into this ditch, the proposed lateral.”
Thomas W. Rivers, whose qualification as an expert witness is set forth above, testified for the drainage district as to tract No. 545 on direct examination:
“The terrain of that tract is quite flat, it is a pocosin. There is no assured surplus drainage outlet. That is the course the water will follow. The land is so flat it has to follow anything it can get into. The lateral ditch along the roadway is the nearest thing to a drainage outlet.”
J. Y. Hofman, admitted by the parties to be an expert in forestry, testified for the respondents on cross-examination:
*346 “* * * Trees must have air for growth, and in order to get air the water cannot stand stagnant on the ground. It must be moved off. It is very dangerous for water to stand for more than two to three weeks at a time without being drained off. It keeps the air from getting to the trees. The sub-surface water should not be affected by the drainage. The important thing is getting the water off the top of the land so that the trees can get the air they need to grow.”
Respondents offered evidence tending to show that these three tracts of land have sufficient natural drainage for the growth of timber thereon, and that the drainage of these tracts of land, if included in the drainage district, may be a detriment to the growing of timber on certain parts of these tracts.
It is our opinion, and we so hold, that considering the evidence offered by the drainage district in the light most favorable to it, and considering so much of respondents’ evidence as is favorable to the drainage district, or tends to clarify or explain evidence offered by the drainage district not inconsistent therewith, as we must do in passing on a motion for judgment of involuntary nonsuit, Bridges v. Graham, 246 N.C. 371, 98 S.E. 2d 492; Watters v. Parrish, 252 N.C. 787, 115 S.E. 2d 1, it permits a finding by a jury of the following facts and legitimate inferences: That all three tracts of land, or most of all these three tracts, do not have sufficient natural drainage, or any other drainage, to prevent surface water from standing on the ground, that Coxville silt loam is the dominant on all three tracts, that each tract has Coxville soil, and that such soil is adapted to the growing of timber, when properly drained, that trees must have air for growth, and in order to get air the water cannot stand stagnant on the ground, it must be moved off, that it is very dangerous for water to stand for more than two to three weeks at a time without being drained off, because it keeps the air that trees need to grow from getting to the trees, that the sub-surface water on these tracts should not be affected by the drainage district, and that all three tracts of land, Nos. 181, 273, and 545, will be benefited for the growing of trees by being included in and receiving the benefits of the drainage district, in that the surface water will be drained off so that the trees will have air for growth. The conflicting evidence of the parties presented a case for the jury, and the court properly denied respondents’ motion for judgment of compulsory nonsuit made at the close of all the evidence.
Respondents’ grouping of exceptions to the charge — there are no assignments of error — is: “GROUP ‘F’. Exception No. 11 (R p 174), Exception No. 12 (R p 175) are to the charge of the court. Exception
“Rule 19 (3), Rules of Practice in the Supreme Court, 221 N.C. 554, 555, as interpreted in the decisions of this Court, require: ‘Always the very error relied upon shall be definitely and clearly presented, and the Court not compelled to go beyond the assignment itself to learn what the question is.’ State v. Mills, 244 N.C. 487, 94 S.E. 2d 324; Allen v. Allen, 244 N.C. 446, 94 S.E. 2d 325; Parsons v. Benfield, 228 N.C. 651, 46 S.E. 2d 829; Porter v. Lumber Co., 164 N.C. 396, 80 S.E. 443; Thompson v. R. R., 147 N.C. 412, 61 S.E. 286. The objectionable assignments in their present form would require the Court to undertake a voyage of discovery through the record to ascertain what the assignments involve. This the Court will not do. Cecil v. Lumber Co., 197 N.C. 81, 147 S.E. 735.”
Respondents’ grouping of exceptions to the exclusion of evidence is: “GROUP ‘B’. Exception No. 2 (R p 132); Exception No. 3 (R p 132); Exception No. 4 (R p 133); Exception No. 5 (R p 134) are to the ruling of the court excluding evidence of respondents.” These exceptions are overruled for the Court will not embark “on a voyage of discovery.”
Respondents’ grouping of exceptions Group “D” is: “Exception No. 8 (R p 149); Exception No. 9 (R p 149), are to the refusal of the court to charge the jury according to the prayers tendered by the respondents.” These exceptions are overruled, for the reason above stated.
Respondents group exceptions to the submission of the issues to the jury, and to the recital of the issues to the jury in its charge. These exceptions are overruled. Respondents tendered no issues. To find the issues and the recital of the issues in the charge we must go “on a voyage of discovery” beyond the grouping of exceptions. However, the issues submitted by the court were sufficient, because they presented to the jury proper inquiries as to all the determinative issues of fact in dispute, and afforded the parties opportunity to introduce all pertinent evidence and to apply it fairly. G.S. 156-66; G.S. 156-75; Shelton v. White, 163 N.C. 90, 79 S.E. 427; Cherry v. Andrews, 231 N.C. 261, 56 S.E. 2d 703; Strong’s N. C. Index, Yol. 4, Trial, sec. 40. In respondents’ brief their only statement to the submission of the issues is “on the same grounds that support our contentions for judgment as of nonsuit.”
In the trial below we find
No error.
