Terry v. Jim Walter Corp.

8 N.C. App. 637 | N.C. Ct. App. | 1970

Campbell, J.

At the outset it is noted that the appellant failed to comply with the rules of this Court in that the brief does not “contain, properly numbered, the several grounds of exception and assignment of error with reference to the pages of the record, and the authorities relied on classified under such assignment.” Rule 28.

The defendant assigns as error the charge of the trial court on the second issue as to the measure of damages.

The trial court instructed the jury as follows:

“The measure of damages in this case is first the reasonable cost of the removal of the house plus the difference between the fair market value of the property immediately before the trespass and the fair market value of the property immediately after the house is removed.

As to the reasonable cost of removal of the house, I do not think that needs any further explanation. You have heard the evidence as to that. You are to allow the plaintiffs what you find to be the reasonable cost of removal.”

The trial judge committed error in this instruction. Rule 51 of the Rules of Civil Procedure which became effective January 1, 1970, prior to the trial of this case, provides that the judge “shall declare and explain the law arising on the evidence given in the case.” This requirement is a continuation of the requirement previously contained in G.S. 1-180.

“It is the duty of the trial court to declare and explain the law arising on the evidence as to all substantial features of the case, without any special prayer for instructions to that effect, and a mere declaration of the law in general terms and a statement of the contentions of the parties is insufficient. . . .” Therrell v. Freeman, 256 N.C. 552, 124 S.E. 2d 522 (1962).

The vice of the instruction in the instant case is clearly shown by the answer of the jury to this issue. While the plaintiffs in case of a wrongful trespass by the defendant were entitled to have their land restored to its previous condition before the trespass, nevertheless, they had offered evidence showing what it would cost to move the house and keep the house intact. The plaintiffs’ evidence tended to show that this would cost in the neighborhood of $2,100.00 because of the necessary preparation that would have to be undertaken. The plaintiffs’ evidence further showed that the house could simply be destroyed and the debris cleaned up at a cost not exceeding $500.00, and the defendant had offered evidence that this could be done at a cost of $250.00. It was incumbent upon the trial judge to explain these various factors to the jury and to explain to the jury that the plaintiffs were not entitled to have the house removed intact, but simply to have it removed from the premises and any debris cleaned up. The court further instructed the jury that in determining the difference between the fair market value of the property immediately before the trespass and the fair market value of the property immediately after the house is removed the jury could take into consideration “the evidence concerning the cost of replacing any trees that were cut down.” There was no evidence introduced that the defendant had cut down any trees. The testimony of the plaintiffs’ witness Tillery was to the effect that Tillery had done the cutting of the trees. There was no evidence that Tillery was an agent of the defendant; but on the contrary, Tillery cut the trees down in order to prepare for the location of the house he was having the defendant erect and which house Tillery bought and is still occupying.

The trial judge further instructed the jury that in answering the second issue, the jury might award the plaintiffs an amount of money and that “the amount may be anywhere from one cent to $4500 which is the figure prayed for by the plaintiffs in their prayer for relief in the complaint, or the amount may be anywhere in between these figures.” The plaintiffs did not offer evidence which would substantiate any such damages. The plaintiffs’ evidence shows $500 to remove house and clear up debris and $250 for loss in value of the lot.

It is to be noted that since the defendant is not a public authority or clothed with any right of eminent domain, the plaintiffs, as the landowners, could elect either to keep the house on their lot or demand that the defendant remove it and seek damages for the wrongful trespass. Leigh v. Mfg. Co., 132 N.C. 167, 43 S.E. 632 (1903).

For an interesting article pertaining to remedies for trespass to land, see the article by Professor Dobbs, 47 N.C.L. Rev., 334, et seq. Likewise see Homes, Inc. v. Holt, 266 N.C. 467, 146 S.E. 2d 434 (1966), where a shell home was placed on the wrong lot and the landowner refused to permit the construction company to remove the home, and the construction company brought an action for unjust enrichment.

In the instant case the landowner elected not to keep the home, but instead sought damages for the wrongful trespass.

Since there must be a new trial, we refrain from further discussion as the same evidence and questions of law may not be presented on the second trial.

New trial.

ParkeR and VaughN, JJ., concur.