51 N.C. 225 | N.C. | 1858
The plaintiff offered, as a witness, one Thomas J. Etheridge, who, upon his preliminary examination, stated that he had no interest in this suit; that he had a suit now pending against the defendant for the same matter; that he had rented the locus in quo to the plaintiff, during the year 1854, and was to receive one-third of the crop for rent. The defendant objected to the admission of this witness, but the objection was overruled, for which, the defendant excepted.
This witness stated, that in 1854 he rented the field in question to the plaintiff, who had it in cultivation in corn in May of that year, when the land was covered with water, from the opening of a ditch leading into the field, which had been cut by the witness in August, 1853; that this ditch ran through an upper farm, which the witness sold to the defendant, Shaw, in 1853. On cross-examination he stated that the ditch commenced in the upper farm, (now Shaw's) where the land was *226 cleared, ran in a line with, and a few feet of, an old canal, until it, (the canal,) entered into the land of one Baxter; thence it ran in a direct course to the corner of the Carrell field, (the locus in quo;) thence into a ditch in that field. He said that it was a "three foot" ditch, and was not cut as a drain to the upper farm, but to obtain earth for making a dam to keep the back water off of his land, and was stopped up the day after it was finished, both inside and outside the Carrell field, by throwing logs and earth, and other things into it; that it was not opened again until the trespass complained of; that by this act the water was thrown upon the plaintiff's field, covering it over and drowning the growing crop. He stated further, that in August, 1853, he was living upon the upper farm, and sold it to Shaw in the November following.
William McLennon stated that he was in the employment of the defendant, and was sent by him, with his hands, to unstop the ditch in question in May, 1854, which he did by removing the obstructions on the outside of the plaintiff's field; that he then entered into the field and took out the logs and earth which had been placed there as an obstruction, and let the water through upon the plaintiff's field below, which was covered with it. This witness stated further that he had seen this obstruction in the ditch before Etheridge sold to Shaw.
The plaintiff then offered evidence, that there were sixty thousand corn hills in the field, and that the damage done was equal to one barrel in the thousand. Another witness stated that the loss was fifty barrels, and that corn was worth 77 1/2 cents, at Norfolk and Elizabeth City, per bushel. One of these witnesses testified that the dam in the ditch was put there in 1853.
The defendant offered a deed from Thomas J. Etheridge to himself, dated November the 29th, 1853, for the upper farm. Willoughby McBride testified as to the situation of the two farms, and the former modes of draining them, and as to the natural flow of the water, which, from the view taken of the subject by the court, is not deemed material. He said he did not know when the dam in question was put into the ditch. *227 Dr. C. G. Marchant testified to the same purport as the foregoing witness. He also stated that he did not know when the ditch was dammed or obstructed with logs, c., as Etheridge has described it. Joseph B. Morgan, and B. M. Baxter, both testified as to the same matters spoken of by the witness, McBride, and both concluded by saying that they did not know when the obstructions were placed in the ditch.
There was no evidence on either side that proved this field to have been overflowed previously to the trespass complained of.
There was no further evidence as to the ditch, whether it was intended to be used as a drain, or as to the time when it was obstructed — whether before or after the upper place was sold to the defendant.
The Court charged the jury, that the plaintiff being in possession of the land with a crop growing on it when the dam in the ditch was cut by the defendant's orders, he was entitled to recover damages for the loss he had sustained, if that loss was connected immediately with the act of the defendant; that if the ditch, at the time of the sale to Shaw, in 1853, was in the condition in which Etheridge had described it to be when he made and left it in the August before, nothing passed to Shaw but the incidents connected with the land at the time of the sale to him, and he acquired no right thereby to enter upon a neighboring tract of land and remove obstructions thereon for the purpose of facilitating the drainage of his own land. The Court further charged the jury, that there was no evidence that the obstructions spoken of were placed in the ditch after the sale to Shaw.
The defendant's counsel then asked the Court to charge the jury that they ought not give damages according to the estimate of the witnesses touching the value of corn in 1854, but damages only for flooding the land, and the necessity of replanting the corn. To this the Court replied that the proper rule had been laid down on the subject, and declined to charge further. Defendant excepted for this and for error in *228 the instructions given to the jury. Verdict for the plaintiff. Judgment. Appeal by the defendant. The first objection which appears in the defendant's bill of exceptions is, to the competency of the witness, Thomas J. Etheridge. He was landlord of the plaintiff, and, as such, was entitled to receive from him, as rent, one-third of the crop made on the land to which the injury was alleged to have been done. The objection is clearly untenable. This claim upon the plaintiff was only for a certain portion of the crop actually made by the plaintiff, whether much or little. He was not entitled to any part of the damages which the plaintiff might recover, and if he were injured by the act of the defendant whereby the part of the crop which he might otherwise have received was diminished, he could bring an action himself against the defendant, to recover damages adequate to his loss. It was, indeed, stated, that he he had brought such an action, which was then pending. He may have had an interest in the event of the question, but he had certainly none in the event of the suit, which alone can exclude a witness. The 63d chapter, section 1st, of the Revised Code, which gives to the landlord, who is to receive from his tenant a part of the crop, as rent, a quasi right of action against an officer, who removes it, does not vary the rule, because, although he may have a special action on the case against the officer who levies upon it and takes it away, yet he cannot maintain trespass, for he has neither the possession, nor the property. Peebles v. Lassiter, 11 Ired. Rep. 73.
There is nothing in the objection to the testimony as to the price of corn about the time of the injury, with a view to the amount of the damages. The price of the article at the markets of Norfolk and Elizabeth City, was proved for the express purpose of ascertaining its value in the county of Currituck, where the trespass was committed. As the injury was *229 committed upon a growing crop of corn, it was impossible to ascertain the extent of the damage resulting from it, without an inquiry into the value of that article in its matured condition. The testimony admitted for the purpose of ascertaining the damage, being proper, the rule laid down by his Honor for fixing upon the amount, was undoubtedly correct. It was, that the plaintiff "was entitled to recover damages for the loss he had sustained, if that loss was connected immediately with the act of the defendant." We are at a loss to conceive what other rule, having the semblance of justice, could have been announced by his Honor; and so far from being opposed to, it is supported by, what was said by this Court in the recent case ofHendrickson v. Anderson, 5 Jones' Rep. 247, referred to by the defendant's counsel. See also Dickenson v. Bogle, 17 Pick. Rep. 78, cited for the plaintiff, in which it is said, that where an act complained of is admitted to have been done with force, and to constitute a proper ground for an action of trespass vi et armis, all the damage to the plaintiff, of which such injurious act was the efficient cause, and for which the plaintiff is entitled to recover, in any form, may be recovered in such action, although such damage did not occur until some time after the act was done.
There is not the slightest foundation for the objection that the Court erred in saying there was no evidence that the obstruction was placed in the ditch after the sale to the defendant. All the testimony which was given on that subject, was that the ditch was filled up before the sale to the defendant, and, consequently, he was guilty of the trespass complained of, by sending his overseer and his hands into the plaintiff's field and opening it, whereby he flooded the plaintiff's corn.
PER CURIAM, Judgment affirmed. *230