Batts v. . Cary and Cary v. . Batts

Stagy, C. J. In the Spring of 1925, the town of Cary undertook to .install a system of municipal waterworks, including a sewage disposal plant, and, in doing so, entered upon the lands of J. E. Batts and wife and began the cutting of a trench preparatory to laying pipe, etc. On 6 May suit was started by Batts and wife to enjoin the town from proceeding further and for damages. It was alleged and denied that Batts and wife had consented for the agents of the town to enter upon their lands. On 28 May, the town of Cary instituted a condemnation proceeding in the Superior Court of Wake County in order that it might, by law, acquire the right to proceed with the work already started on the lands of Batts and wife. By consent, the two actions were tried together, J. E. Batts and wife being treated as plaintiffs in the consolidated action, and the town of Cary as defendant. We find no error in the trial of the cause, except it appears, from the evidence and the charge, that the amount awarded for wrongful trespass, as represented by the answer to the second issue, was duplicated by the jury in fixing the compensation, under the third issue, *433 to be paid for tbe rights condemned. Ingram v. Hickory, 191 N. C., 48; Remington v. Kirby, 120 N. C., 320. With tbe elimination of all over a nominal amount that was assessed under tbe second issue, tbe verdict and judgment will be upheld. Modified and affirmed.