Forest City Cotton Co. v. Mills

218 N.C. 294

• Court: Supreme Court of North Carolina
• Decided: October 9, 1940
• Status: Published

Opinion

Stacy,'C. J.

The trial court seems to have fallen into error in instructing the jury to answer the issue of liability “No” if they should find that tbe defendant “bas not made any unreasonable use of its riparian rights, ... or, if reasonable, bas not taken in whole or in part any of plaintiff’s land.” Tbe plaintiff bad abandoned its allegations of negligence and was proceeding only in trespass. It was, therefore, entitled to have tbe cause submitted to tbe jury on tbe theory of trespass without reference to tbe allegations of negligence or wrongful taking. Cline v. Baker, 118 N. C., 180, 24 S. E., 516: Chaffin v. Mfg. Co., 135 N. C., 95, 47 S. E., 226.

Tbe challenged instruction placed too heavy a burden on tbe plaintiff. In trespass, tbe plaintiff is entitled to recover nominal damages if be only show that tbe defendant broke bis close. Lee v. Stewart, ante, 287; Chaffin v. Mfg. Co., supra; Little v. Stanback, 63 N. C., 285.

New trial.