Whitfield v. Rowland Lumber Co., 67 S.E. 512

Whitfield v. Rowland Lumber Co.

67 S.E. 512 | N.C. | 1910

Lead Opinion

Action to recover damages for defendant's alleged cutting of trees on the plaintiff's land under sizes specified in his timber deed. The facts are sufficiently stated in the opinion, taken with reference to the plaintiffs' exceptions, as follows: (The plaintiff's exceptions are set out in the original.) Both sides appealed. In September, 1892, the husband of V. A. Whitfield and father of the other plaintiffs conveyed to H. L. Pope, trustee, under whom the defendant claims, "all the merchantable pine timber from 12 inches square at the stump and upwards" on the lands described (with one exception therein stated), giving his 15 years to cut and (213) remove it, and the defendant cut and removed the timber in the spring and summer of 1907. This measurement referred to the date of the deed. Warren v. Short, 119 N.C. 42. In 1907 the timber was cut down to 10 and 12 inches in diameter, according to the measurements of a separate committee of plaintiffs and defendant, and the answer admits that some was cut under size. The main controversies were as to the growth of the timber, and the measurement, plaintiffs contending that "merchantable pine timber 12 inches square" meant wood measure, and that the bark-measurement rule of Hardison v. Lumber Co., 136 N.C. 174, does not apply. His Honor held that it did, and from the judgment plaintiffs excepted and appealed.

Exceptions 1, 4, 5, 12 and 14 present this question of measurement. InHardison v. Lumber Co., 136 N.C. 174 and 175, the Court says "a contract for logs `squaring' so many inches is an entirely different measurement, for this presupposes the bark, and outer timber except at the four edges, to be cut away. " Bark is part of the standing tree to be measured in getting the diameter of a tree or log, but the tree is not merchantable timber until the bark is cut off, and the slabs. The defendant under this deed was entitled only to ton timber that would square 12 inches, September, 1892. The court charged, as a matter of law, excluding all evidence about the matter, that under this contract merchantable timber included the bark, and made the contract provide for timber with bark edges. This was prejudicial, for it reduced the diameter of the trees for which the plaintiff was entitled to recover.

Exception 2 cannot be sustained. In permitting the witness to testify as to the number of trees over 27 inches in diameter the court admitted irrelevant testimony, but it was not prejudicial.

Exception 3, for permitting a witness to count the rings in a section of the tree to show the age of the tree, cannot be sustained. Whether *206 there is one ring for each year's growth is not a matter of law, but of fact, and properly submitted to the jury. Exceptions 7 and 8 as to defendant's instructions to its hands cannot be sustained. It was corroborative. Exceptions 9 and 10, because the witnesses testified as to matters in their observation, cannot be sustained. The evidence was admissible. Its weight was for the jury.

Exception 11. The court did not stop counsel when objection was made during his argument, but corrected the matter in his (214) charge. This rested in the discretion of the court. S. v. Hill, 114 N.C. 783; S. v. Ussery, 118 N.C. 1177.

Exceptions 12, 13 and 14, for refusing to give plaintiffs' prayers, and for the charge given in lieu thereof, must be sustained. The defendant was entitled to cut only such trees as, on the date of the contract, would have squared 12 inches at the stump. When timber is squared, the bark is cut off, and therefore not to be counted. The plaintiff was also entitled to recover for any damages, if shown, to the land, undergrowth, etc., by reason of the unlawful cutting and removal of trees under the contract size. Davis v. Wall, 142 N.C. 451; Gaskins v. Davis, 115 N.C. 85.

While the answer, admitted the cutting of some trees under the size specified in the contract, the burden was on the plaintiff to show the number and the amount of damages therefrom.

DEFENDANT'S APPEAL.

Addendum

Exceptions 1, 9 and 10. It was not error to permit the witness to testify that a tree to square 12 inches should be 19 inches in diameter. It is true that a stick of timber 12 inches square will have a diagonal of 17 inches (very nearly), and that this is a matter of mathematical calculation reached by adding together the square of 2 sides (288 inches) and taking its square root, which is almost exactly 17 inches. But in squaring timber all the bark comes off and, besides, few trees are exactly round, so that the question is a practical one based upon experience and observation.

Exceptions 2,3 and 4 raises the point, whether witnesses might testify to the damage plaintiffs suffered to their land from the cutting of this timber under size by defendants, giving their estimate from a careful knowledge and investigation, and the ruling of his Honor is sustained byWade v. Telephone Co., 147 N.C. 222; Myers v. Charlotte, 146 N.C. 247;Davenport v. R. R., 148 N.C. 294. Both these witnesses had been familiar with the land for twenty years and had made a careful examination and count of stumps, etc., since the cutting, and so testified. *207

Exceptions 5 and 6 are because witnesses, skilled and experienced in timber and mills, were allowed to give their opinion as to rate of growth of pine trees on this land and land in the neighborhood. This was allowable (Myers v. Charlotte, 146 N.C. 247), and falls within the rule that allows the opinion of witnesses when the facts cannot be learned any other way, the witness being required to state the facts and observations upon which his opinion is based.

Exception 7. The court properly excluded testimony of an (215) alleged subsequent oral agreement as to what had been the growth of the timber between the date of the contract and of the cutting. Not only two of plaintiffs were then minors and another was absent, but if this is relied on to release damages for trees cut under the contract size, it was without consideration, and an oral conveyance of an interest in realty. Rev., 976. There was no latent ambiguity here to be explained, as in Ward v. Gay, 137 N.C. 397.

Exception 7 is for rejection of the witness's opinion as to the value of the land before and after the timber was cut. The cutting of part of the timber was lawful and the measure of damages is the value of the trees unlawfully cut, with incidental damages therefrom to the other growth.

Exceptions 9, 10 and 11 are to evidence tending to show the age of trees by the number of rings. As already stated above, in plaintiff's appeal, what weight should be given to such evidence was for the jury. The court could not hold it valueless, as a matter of law.

In plaintiffs' appeal, error.

In defendant's appeal, no error.

Cited: Williams v. Lumber Co., 154 N.C. 311; Veneer Co. v. Ange,165 N.C. 58, 60.