Lumber Co. v. . Lumber Co. , 137 N.C. 431 ( 1905 )

The defendant has also asked us to rehear the decision in this appeal, though no separate petition has been filed, as should have been done. From an examination of the record and the former opinion, it appears that two points only were made and considered by the Court, namely: (1) Is chapter 243, Laws 1889, amending section 2522 of The Code, constitutional? This involved the question whether the Legislature could by said act declare a forfeiture of land to the State, and vest title to the same in the board of education, for failure to list and pay the taxes properly assessable against it, without provision for some judicial inquiry before condemnation of forfeiture. We decided (445) then, 135 N.C. 742, as we had before in Parish v. Cedar Co.,133 N.C. 478, after an able and exhaustive discussion of the subject byDouglas, J., for the Court, that no such power existed, as it would be a violation not only of the natural, but of the constitutional, right of a citizen to take his property without notice, hearing, or judgment. We adhere to the decision, which, by the way, was in favor of the defendant, and we take it that it does not intend to except to that ruling, but to the one we are now about to consider.

We further decided that it was error to include in the judgment a declaration, although pursuing the language of the verdict upon the first and second issues, to the effect that the plaintiff is the owner of the land inside the Weeks and Valentine patent, not including any part of the land described in the Gregory and Burgess grants, because this is not an action for the recovery of real property (ejectment), but solely for the recovery of damages for an unlawful entry upon the land described in the complaint (trespass). The issue as framed was not appropriate to an action of trespass, which should be substantially, Did defendant trespass upon the land of the plaintiff, as alleged in the complaint? and this, coupled with an issue as to the damages, is quite sufficient to present the matter in dispute. Proof of title may be competent under the first of those issues, but an inquiry as to the title is no part of the issue itself.

The form of the issue, though, worked no harm to the plaintiff, as the answer of the jury merely ascertained that, being the owner, the plaintiff was entitled constructively to the possession, which will support trespass for an injury to the close. But the fact so found by the jury was not proper to be stated in the judgment, and it was ordered by this Court to be stricken out. We do not now see any error in this ruling. The (446) plaintiff's recovery must be limited to nominal damages for the admitted technical trespass and the costs, as we have held in the plaintiff's appeal, and this is all that should be stated in the judgment.

There is no other ruling of the court below, as far as appears in the defendant's appeal, which prejudiced the defendant, or to which it is entitled to take exception. This dismisses his petition.

Petition dismissed.