Spence v. Lake Drummond Canal Co.

63 S.E. 729, 150 N.C. 160, 1909 N.C. LEXIS 16

• Court: Supreme Court of North Carolina
• Decided: February 24, 1909
• Status: Published

Opinion

Per Curiam :

The Court is unable to perceive any error in the proceedings below to the defendant’s prejudice. As we understand the evidence, it tended to show that defendant, in cutting a ditch on its own right of way, threw and carried the mud, etc., on the side of the ditch and out and over the plaintiff’s lands, rendering several acres entirely worthless and causing other damage to plaintiff’s property.

The court, in charging tbe jury, restricted tbe plaintiff’s recovery to tbe wrong, as indicated, telling them that plaintiff could only recover for wrongfully causing mud, sand and water to flow over on plaintiff’s land and injure it. Tbe defendant did not seriously contend before us that this was not a legitimate subject for recovery, but seemed to object for that plaintiff was allowed to recover as for permanent damages. It may be that the amount recovered in this present case should not be considered and termed permanent damages, but the court only allowed recovery to the extent of the wrong actually inflicted, and the insertion of the word “permanent” would seem to make for defendant’s benefit, as the effect, if any is allowed, would be to justify a repetition of the act, without further complaint, to the extent that the land has been heretofore covered and destroyed.

There is no error to defendant’s prejudice, certainly in the use of the term in the issue, and the judgment below is therefore affirmed.

No Error.