Goodson v. . Mullen and Derr

Ashe, J. This action is brought under the Act of 1868, as amended by the Act of 1877. ' The former act of 1868 as brought forward in Battle’s Bevisal, ch. 72, secs. 13, 14, 15, 16, 17 and 18, made no substantial change in the statute in reference to mills as contained in the Revised Code, except as to the mode of proceeding. But the act of 1876-77 repealed all the sections of Battle’s Revisal, ch. 72, in reference to mills, except the 17th and 18th, and, as was said in Hester v. Broach, 84 N. C., 251, the act of 1876-77, ch. 197, and the 17th and 18th sections of ch. 72 of Battle’s Revisal constituted all the statutory provisions with regard to injuries caused by the erection of mills. *209 The fifteenth section of ch. 72 of Battle’s Revised, which provides that “ a judgment, giving to the plaintiff an annual sum by the way of damages, shall be binding upon the parties for jive years from the issuing of the summons,” was repealed by the act of 1877. But the 17th section was retained, which provided “that in all cases where the first judgment of the court shall assess the yearly damages of the plaintiff as high as twenty dollars^ nothing in this chapter contained shall be construed to prevent the plaintiff, his heirs or assigns from suing as heretofore, and in such cases the final judgment aforesaid shall be binding as heretofore, aud in such case the final judgment aforesaid shall be binding only for the yearns damage preceding the issuing of the summons.” ■ The act of 1877 has thrown some confusion into the subject, but it is evident the Legislature did not intend to destroy the remedial character of the statute. Prior to the act of 1877, the act of 1868-69, Battle’s Revisal, ch. 72, substantially the same as ch. 71, of the Revised Code, had received a construction by this court which was well understood and acted upon in practice. For instance, where the annual damages were assessed by a jury at a sum less than twenty dollars per annum, the judgment was for five years, including the year preceding the filing of the petition, for each year’s damages so assessed, with a eessat exeeutio for the successive years after the first year. But when the annual damages were assessed as high as twenty dollars the judgment was the same, except in that case the plaintiff had his election to take the judgment for five years or only for the one year preceding the filing the petition, in which case he was at liberty to bring his action at common law. If, however, the action should be continued for more than five years and the damages assessed were for more than twenty dollars a year, then the judgment was for the entire damages up to the trial, and the plaintiff, in that case was debarred of the privilege of making an election to take the damages for the years that were past, and resort to his common law remedy, for he had no opportunity of making an elec *210 tion and was by the lapse of time depi-ived of any other relief than that given by the statute. Gillet v. Jones, 1 D. & B., 339. Notwithstanding the Act of 1877, under the unrepealed section 17 of Battles Revisal, chapter 72, annual damages were to be assessed, and if for more than twenty dollars a. year, the plaintiff could make his election, and take judgment only for the damages for the year preceding the issuing of the summons, and have recourse to his remedy at common law, but when he failed to do so, he was entitled to recover judgment for the annual damages up to the time -when the cause was determined. Burnett v. Nicholson, 86 N. C. 99, and Gillet v. Jones, supra. When the jury find that the damages are different in different years, they should assess the damages specifically for each year, and if the injury should be removed or diminished by taking-down or lowering the dam, no damage or less damage, as the case might be, should be assessed for those years, but when no such facts are shown, and they assess the same damage for each year, the judgment as well in the one case as the other was for the aggregate sum of the assessment for each year, up to the time of trial. Burnett v. Nieholson, supra. The only i-oason why it was necessary to designate the damages for each year, was to enable the plaintiff to determine whether he would make election to take judgment, for the damages for the one year preceding the commencement of the action, and that the ■Court might -see for what amount the judgment should be rendered, but when no such election was made and the plaintiff was .entitled to judgment for all the damage assessed up to the time of trial, we can see no reason why the annual damages should be assessed specifically for each year. But in case they were so assessed, and the ground of the plaintiffs’ exception to the judgment of the court is, that it was for only one year previous to the issuing of the summons when the jury by their verdict had assessed in damages for three years preceding the commencement of the action, beginning from the 17th day of April, 1874, to the 17th day of April, 1884, the summons having been issued on the 17th day of April, 1877. *211 The jury had no right to assess the damages for three years preceding the commencement of the action, but having done so, and assessed the same damages for each successive year the error in the verdict was cured by the judgment which was for the aggregate sum of the several assessments commencing one year before the action was begun. The exception is met by the decision in Pugh v. Wheeler, 2 D. & B. 50, where it was held, “ If on a petition for damages caused by the erection of a mill under the act of 1809 (Battle’s Revised, chapter 72,), the jury returned a verdict assessing the damages for more than one year before the filing the petition, the Court may correct it, by giving judgment for the damages of only one year previous.” We think it proper to add before concluding, that by section 1860 of The Code the law is again changed, and the damages are to be now assessed as before the passage of the act of 1877, for five years. We find no error in the record affecting the rights of the plaintiff. The judgment therefore, so far as it relates to his appeal, is affirmed. No error. Affirmed.