Ridley v. Railroad

32 S.E. 379, 124 N.C. 37, 1899 N.C. LEXIS 11

• Court: Supreme Court of North Carolina
• Decided: February 28, 1899
• Status: Published

Opinion

Clark, J.

The plaintiff excepted to the submission of an issue as to the permanent damages, they not having been claimed by the complaint. But it was held in the same case when here on a former appeal (118 N. C., 996, at p. 1008,), that either the plaintiff or defendant could have the permanent damages assessed, if demanded in either the complaint or answer. To same purpose is Parker v. Railroad, 119 N. C., 677.

The jury found the permanent damages to be $500 and the damages to the crops in the past three years to have been $300. The court rendered judgment for only $500. In this there was error. (See defendant’s appeal in this case.) The finding of permanent damages bars all actions for damages to future crops, but not the simultaneous recovery of past damages to the crops (except in actions brought since chapter 224, Acts 1895,), unless by the frame of the issue or the charge it is clear the past damages were considered in the ascertain ment of permanent damages. Here, tbe submission of separate issues shows that they were not.

Tbe plaintiff objected to evidence as to tbe valuation of tbe land upon tbe tax list. There have been several decisions that tbe listing of land was some, though slight, evidence of claim of title and of tbe character of possession by tbe party listing tbe same. Austin v. King, 97 N. C., 339; Pasley v. Richardson, 119 N. C., 449; Barnhardt v. Brown, 122 N. C., 587; 1 Greenleaf Ev., section 493.

Acquiescence in listing and payment of taxes by another is evidence against tbe party out of possession. But tbe tax valuation, being placed on tbe land by tbe tax assessors, without tbe intervention of tbe land owner, no inference that it is a correct valuation can be drawn from bis failure to except that tbe valuation is too low. Such valuation was r&s inter alios acta, and is not competent against the plaintiff in this action. Daniels v. Fowler, 123 N. C., 35; Flint v. Flint, 6 Allen (Mass), 34; Kanarson v. Henry, 101 Mass., 152.

On the issue as to permanent damages let there be a new trial.

New trial.