Caldwell Land & Lumber Co. v. Hayes

AlleN, J. It is admitted tbat tbe trespasses complained of occurred within three years prior to tbe commencement of this action, and tbat tbe plaintiff may recover damages therefor, unless a recovery is prevented by tbe fact tbat this action was not instituted within twelve months after a judgment of nonsuit in another action between tbe same parties, on tbe same cause of action. Tbe defendant relies on section 370 of tbe Eevisal, providing tbat a new action may be commenced within twelve months after judgment of nonsuit, and insists tbat it is a limitation on tbe right of action; but it was expressly held otherwise in Keener v. *338 Goodson, 89 N. C., 279, the Court there saying: “The statute allowing* actions to be brought within a year' after judgment of nonsuit was intended to extend the period of limitations, but not to abridge it.” It is true that expressions may be found in Meekins v. R. R., 131 N. C., 1, and in Trull v. R. R., 151 N. C., 547, which, if considered without reference to the facts, might be understood to recognize a different rule, but there is no conflict between the cases. In the Meehins and Trull cceses the actions were brought to recover damages for the death of one alleged to have been killed negligently, and the defendant was contending that the right to bring such an action was conferred by statute; that it could only be brought within twelve months from death; that this was not a statute of limitations, but a condition affecting the cause of action itself, and, therefore, the section allowing a new action to be brought within twelve months after judgment of nonsuit did not apply to such action, and it was held that it applied to all actions. There was> no error in refusing to dismiss the action. The second exception is to the charge of his Honor on the issue of damages. The charge, if justified by the allegations of the complaint and the evidence, is authorized under chapter 320, Laws of 1907, which is applicable only to the counties of Caldwell, Wilkes, Watauga, Burke, McDowell, Yadkin, Cherokee, and Mitchell, and in which it is provic[ed: “Sec. 2. That in all eases where any person, firm, or corporation, their agents or employees, shall cut, fell, or remove any timber trees growing upon the lands of another without the consent of the owner thereof, with intent to convert to his own use; he, she, or they so offending shall be liable to pay to such owner double the value of such timber trees so cut down' or felled, to be recovered in civil action to be brought therefor.” We do not think, however, that the complaint was framed under this statute, or that there was evidence which entitled the plaintiff to recover double damages. *339 We do not bold that it is necessary to refer to tbe statute in the complaint, or that the relief demanded controls the amount of the recovery, but we cannot treat as meaningless the words, “without the consent of the owner thereof, with intent to convert to his own use,” upon which rests the right to recover double damages. In the absence of the statute, the plaintiff was entitled to recover actual damages for an unlawful entry and trespass, and it must have been intended that something more than this should be alleged and proven to entitle one to double damages. The language approaches closely to the definition of felonious intent in larceny, which is the intent to deprive the owner of the use, and to appropriate to the use of the taker, and was intended to cover a trespass where there is no bona, fide claim of right, committed under circumstances indicating a purpose to prevent the true owner from asserting his right. The complaint alleges no more than an unlawful entry and trespass and the evidence goes no further than the allegations of the ■ complaint, and there was evidence that the defendant claimed under a grant from the State. This being our construction of the statute, we must hold that neither the cause of action set out in the complaint nor the evidence introduced to support it entitled the plaintiff to recover double damages, and that the charge was, therefore, erroneous. This would entitle the defendant to a new trial, if the answer to the issue was not so framed that the amount of the double damages may be eliminated, and the plaintiff’s counsel requested that this be done, if it should be held that there was error in the charge. The amount is ascertained by deducting from the total of damages, $353.36, one-half of the first item of $205.36, which will leave a balance of $250.68, upon which the plaintiff will be entitled to interest from the first day of May Term, 1911, of the Superior Court of Caldwell County. The judgment rendered will be modified in accordance with this opinion, and as modified, is affirmed. Cost to be divided. Modified and affirmed.