Opinion
(Filed 5 April, 1922.)
Trials — Nonsuit — Evidence — Questions for Jury.
In this action, involving the right of plaintiff to cut certain timber on lands of defendant, alleged by the latter to be under the size called for in the former's conveyance, it is held that a judgment as of nonsuit was improvidently entered upon the evidence.
APPEAL by plaintiff from Connor, J., at the second May Term, 1921, of WAKE.
At the conclusion of plaintiff's evidence, his Honor rendered judgment of nonsuit. Plaintiff excepted and appealed.
P. J. Olive, Little Barnes, and J. W. Bailey for plaintiff.
H. E. Norris and Armistead Jones Son for defendant.
It is alleged in the complaint that on 17 February, 1916, I. D. Royal and his wife executed and delivered to the plaintiff a deed conveying certain timber situated on the land therein described, and that after the registration of the deed these grantors conveyed a part of said land to the defendant. It is also alleged that for the purpose of acquiring title to a portion of the plaintiff's timber the defendant has endeavored to hinder and delay the plaintiff in removing it, and to this end has threatened and intimidated the plaintiff's employees, (249) and with evil intent has had one of them arrested and prosecuted for an alleged breach of the criminal law, and otherwise has wrongfully obstructed the plaintiff's right of removal. The defendant denies the material allegations of the complaint, and alleges that the plaintiff has wrongfully cut and removed a large quantity of timber of dimensions smaller than the plaintiff's deed specifies, and has otherwise damaged the land.
It is unnecessary to analyze the testimony of the plaintiff's witnesses, which covers about twenty-four pages of the record; but a careful perusal of the evidence considered in the light most favorable to the plaintiff leads us to the conclusion that the jury should have been permitted to determine the controversy between the parties. Daniels v. R. R., 136 N.C. 517; Freeman v. Brown, 151 N.C. 111; Morton v. Lumber Co., 152 N.C. 54; Christman v. Hilliard, 167 N.C. 4; Collins v. Casualty Co., 172 N.C. 543; Rush v. McPherson, 176 N.C. 563; Newby v. Realty Co., 182 N.C. 34. The judgment of nonsuit is reversed, and this will be certified for further proceedings.
Reversed.