Teague v. Alexander, 38 N.C. App. 332

38 N.C. App. 332 | N.C. Ct. App. | 1978

CLARK, Judge.

The defendants group 139 exceptions and assignments of error to the admission of testimony by plaintiff’s witness, John Vaughn, a surveyor, in their first argument, contending that the surveyor was permitted to state his opinions and conclusions. We have examined all of the exceptions and find them to be without merit. On direct examination surveyor Vaughn, found by the court to be an expert in his field, described each line and corner of his survey made from the description of the 173-acre tract in the deed to the plaintiff. He testified that some of the tree marks and corner monuments he found were old, that at the end of some lines surveyed he found “no established corner,” and he fully described the trees, stumps, and monuments at the end of other lines.

For many years in North Carolina surveyors have been recognized, when qualified, as expert witnesses who can give opinion testimony. See West v. Shaw, 67 N.C. 483 (1872). A surveyor may express his opinion of the age of tree marks. West v. Shaw, supra; Dugger v. McKesson, 100 N.C. 1, 6 S.E. 746 (1888). We find that any opinion or conclusion stated by the witness was within his field of surveying and was properly admitted.

Nor do we find merit in defendants’ argument that the court erred in admitting in evidence the survey map of the 173-acre tract described in the deed to plaintiff. Vaughn was a licensed surveyor. He testified that he surveyed the tract, that the map was based on his survey, that the map correctly represented the survey lines and the objects shown thereon marking the boundaries and corners. The trial court did not err in admitting the map for the purpose of illustrating the testimony of surveyor Vaughn.

Defendants pled in bar an action instituted in 1971 by plaintiff against Mamie L. Deal and Lewis Alexander in which it was alleged that Alexander handled the sale of about 73 trees on plaintiffs land to a sawmill operator. The land was not described in the complaint. Defendants filed an answer denying the allegations in the complaint and alleging that Mamie L. Deal owned the lands on which the trees were cut. Soon thereafter Mrs. Deal died, and Virginia Deal Bradford and Julia Deal Alexander were substituted for deceased as parties defendant in that they were administrators of the Estate of Mamie L. Deal. The transcript of the trial, held in July 1972, reveals that plaintiff was unable to locate the boundaries of the 173-acre tract described in his deed. It appeared from cross-examination of plaintiff’s witnesses that Mamie L. Deal, deceased, and her heirs claimed title by adverse possession to the 30-acre tract, which the defendants in the case sub judice now claim. There was no evidence of the location of the boundaries to the 30-acre tract. At the close of plaintiff’s evidence defendants moved for directed verdict and judgment declaring them the owners of the land where the timber was cut. The trial judge stated: “I am going to ALLOW the motion as to the lines and boundaries pertaining to plaintiff’s complaint as for damages because of no maps, plats, or surveys from which the Court or the Jury could determine any issues which the damage for wrongful cutting of timber would raise. As to the twenty years adverse of seven years color, motion is DENIED.” Judgment was never entered.

The transcript of the 1972 trial reveals that counsel for plaintiff (not counsel for plaintiff in the action before us) during trial stated: “I think we’re trying a boundary line or land lawsuit without the proper credentials.” We agree. The lands claimed by plaintiffs were not described in the pleadings, nor did plaintiff offer evidence of location at trial. The three parties defendant were parties to the action but not as owners of the 30-acre tract; Alexander was the agent in selling the timber, and Bradford and Alexander were administrators of the Estate of Mamie L. Deal, deceased.

The doctrines of res judicata and collateral estoppel are recognized in North Carolina. King v. Grindstaff, 284 N.C. 348, 200 S.E. 2d 799 (1973); Crosland-Cullen Co. v. Crosland, 249 N.C. 167, 105 S.E. 2d 655 (1958); Gillispie v. Bottling Co., 17 N.C. App. 545, 195 S.E. 2d 45, cert. denied 283 N.C. 393, 196 S.E. 2d 275 (1973).

Generally, for the judgment in a former action to be held to constitute an estoppel as res judicata in a subsequent action there must be identity of parties, of subject matter and of issues. Light Co. v. Insurance Co., 238 N.C. 679, 79 S.E. 2d 167 (1953). It is clear the defendants have failed to show that the 1971-1972 action and the case sub judice have an identity of parties, of subject matter, and of issues. Thus, the trial court did not err in denying this plea.

We have carefully examined defendants’ remaining assignments of error and find them to be without merit. After a lengthy trial the jury answered the issues in favor of the plaintiff. We find no error that requires a new trial.

No error.

Chief Judge BROCK and Judge MARTIN (Harry C.) concur.