67 S.E. 514 | N.C. | 1910
Action to recover damages for a trespass upon lands alleged to be owned by plaintiffs. Defendants denied plaintiffs' title and claimed ownership of the lands themselves.
Injunctions prohibiting cutting and removing the timber were issued restraining defendants, and also, at instance of defendants, restraining plaintiffs.
Upon the trial of the action of the jury found that McKoy was the owner of all the land described in the complaint, and that Parsley was the owner of the timber on the same. Upon the rendition of the verdict, the plaintiffs moved the court for a retention of the cause on the docket for the assessment of damages accruing to them against the defendants and their sureties by reason of the wrongful issuance of the restraining order; and the court so ordered.
The assessment of damages came on to be heard before G. W. Ward, J., and a jury, at the special January term of the Superior Court of Pender County, and upon said hearing the court ruled that the plaintiff Parsley could only recover nominal damages, and so charged the jury, and judgment was signed as set out in the record, and the plaintiff Parsley appealed. 1. We are of opinion that his Honor did not err in excluding evidence as to damage sustained by the Hilton Lumber Company in its business, claimed to be competent upon the theory that Parsley held the title to the timber as trustee of an express trust for the benefit of the Hilton Lumber Company.
There is no contention that Parsley was trustee of the business of the Hilton Lumber Company, or that this suit was brought for it. He was its president and a stockholder, but occupied no other relation to it. The company was no party to this action and has no locus standi which gives it the right to move in this cause for any damages it may have sustained. Parsley does not allege in the complaint that he held the title to the timber in trust for the Hilton Lumber Company. On the contrary, he expressly avers that he owns the timber in his own right, and it was so found by the jury. Consequently, there is nothing in the record which could put the obligors to the defendant's injunction bond upon notice that they assumed any liability to the Hilton Lumber Company (202) or to any one else other than the plaintiffs of record.
The terms of the bond expressly confine the liability of the obligors to such damages as the plaintiffs H. B. Newton and W. L. Parsley may recover.
2. Whether Parsley holds the title to the timber for himself, or under an express trust, he is entitled to recover such damages as his estate and interest in the timber suffered or was diminished in value by the wrongful suing out of writ of injunction.
According to the deed from Newton to Parsley, dated 30 December, 1901, the grantee has an estate in all the timber of certain dimensions growing on the land, which estate expires at the end of ten years. During that period the grantee had certain rights conferred upon him which expired at the end of that time. It appears that the injunction was in force from 3 November, 1903, until the final judgment entered in this cause, a period of several years. It may be that this materially diminished the value of plaintiffs' estate in the timber, and that it would not sell for as much now as it would have done then. If so, it would entitle him to more than merely nominal damages. Without definite evidence upon the subject, it may be assumed that there is more than a nominal difference in an estate for some eight years' standing timber and one which has only two or three years to run. Or it may turn out that timber is worth more now, notwithstanding the brief period remaining for its removal, than plaintiff could have realized for it during the time he was enjoined. If so, he would have sustained no substantial damage. We think his Honor erred in directing a verdict for merely nominal damages.
New trial. *196
(203)