Simpson v. Lee

26 N.C. App. 712 | N.C. Ct. App. | 1975

CLARK, Judge.

[1] Plaintiffs contest the validity of the referee’s report on the grounds that under the court orders the referee had no authority to hold hearings and issue a report after 1 December 1972. As the record reveals, however, plaintiffs participated in six separate hearings after the deadline for filing the referee’s report had passed. In some of the hearings plaintiffs actually testified, adduced additional evidence and conducted cross-examination of defendants’ witnesses. At no point does it appear that plaintiffs ever objected to continuing with the reference or excepted to the report other than by assignment of error on this appeal.

In Keith v. Silvia, 233 N.C. 328, 64 S.E. 2d 178 (1951), all parties to a reference continued to participate in the reference after the day fixed for the final report. After the referee’s report was filed adverse to the plaintiff, plaintiff attempted to have the referee removed for failing and refusing to file his report on time. The Court said, “[a]ny cause for objection that the referee failed to file the report as in said order directed was waived.” 233 N.C. at 331. (Emphasis added.) Therefore, we find that the plaintiffs, by continuing to participate in the reference, have waived any right to object to the failure of the referee to conduct the hearings and file his report within the time directed by the court. See also Andrews v. Jordan, 205 N.C. 618, 172 S.E. 819 (1934).

[2, 3] The plaintiffs assign as error the adoption by the trial court of the referee’s findings of fact and conclusions of law with respect to the damages caused by plaintiffs’ unlawful destruction of certain crops and timber on defendants’ land contending that the findings of “total market value” are vague and uncertain and do not support the award of damages. In this State, damages allowable for the unlawful destruction of another’s crops are based upon the reasonable value of the crops destroyed, presumably at the time and place of their destruction. See Dixon v. Grand Lodge, 174 N.C. 139, 93 S.E. 461 (1917). By' far the most widely accepted method of arriving at this value is “first, to estimate the probable yield had the crop not been destroyed; second, calculate the value of that yield in the market; and third, deduct the value and amount of labor and expense which . . . would have been required to mature, care for, and market the crop.” Annot., 175 A.L.R. 159, § 12 (1948). In this case it does not appear from the findings of fact whether the crops were growing or mature, and there are no other findings which serve as a basis or support for the award of damages by the court.

[4, 5] Similarly, the trial court adopted the referee’s findings with regard to “total market value” of the timber unlawfully cut by plaintiffs. When timber is unlawfully cut the claimant is entitled to either the difference in fair market value of the land before and after the cutting or the market value of the timber at the time and place of its severance plus incidental damages caused in removal, whichever he elects. See Andrews v. Bruton, 242 N.C. 93, 86 S.E. 2d 786 (1955) ; Williams v. Lumber Co., 154 N.C. 306, 70 S.E. 631 (1911) ; and Jones v. Georgia-Pacific Corp., 15 N.C. App. 515, 190 S.E. 2d 422 (1972). The findings, therefore, like those relating to the crops do no disclose on what basis the damages were computed and hence are insufficient to support the award.

[6] Finally, it was found that the referee’s conclusions with regard to the true location of the boundary line, which conclusions were adopted by the trial court in its judgment, depended completely on a reference to a map described as “Defendants’ Exhibit A.” However, Defendant’s Exhibit A, which was filed with this court on appeal, reveals only distances and corners marked respectively (A), (B), (C), (D), (E), (F), and (I). It contains no courses, nor does it contain a sufficient description by reference to monuments; as such, there is some uncertainty from the description in the judgment and its reference to the map as to the exact location of the boundary line. G.S. 38-3 (c) provides that when final judgment is given in a processioning proceeding, a survey shall be ordered by the court so that the line or lines may be run and marked. The surveyor is to include a map of the line to be filed with the judgment.

These are the only assignments of error properly brought forward for review. Therefore, for the reasons stated above, the cause is remanded for further hearings, if required, and for findings, not inconsistent with this opinion, on the question of damages to crops and timber and for compliance with G.S. 38-3 (c) so that the location of the true boundary line may be properly established. In all other respects, the judgment below is affirmed.

Affirmed in part.

Remanded in part.

Judges Martin and Arnold concur.