Opinion
21820.
ARGUED OCTOBER 8, 1962.
DECIDED NOVEMBER 8, 1962. REHEARING DENIED NOVEMBER 19, 1962.
Injunction, etc. Monroe Superior Court. Before Judge Brown.
Eugene Cook, Attorney General, Carter Goode, Paul Miller, Assistant Attorneys General, Phillip Benson Ham, for plaintiff in error.
W. B. Mitchell, contra.
Since the evidence supports the verdict, the general grounds are without merit, and the lower court did not err in overruling the motions for new trial as amended, the amendments being mere elaborations of the general grounds.
ARGUED OCTOBER 8, 1962 — DECIDED NOVEMBER 8, 1962. REHEARING DENIED NOVEMBER 19, 1962.
This case went to the jury on questions of damages and injunctive relief arising out of a continuing trespass. The jury returned a verdict enjoining the defendants but awarding no compensation. The evidence shows that after the petitioner conveyed certain property for right of way purposes for a limited access highway and access and frontage roads to it, he claims the Highway Department is building a fence which encroaches upon his property for approximately 10 feet in depth along the boundary between the highway and his property on the southerly side of the right of way. To prove his case as to the encroachment the petitioner relied on his own testimony, that of his lawyer and a civil engineer who determined the amount of the encroachment from measurements made on the ground as taken from the plat attached to the deed. The Highway Department relied on the testimony of members of its engineering office and a plat which it alleges is the same as the plat attached to the deed. The testimony of both parties involves the location of the center lines of the main highway and the connecting or access roads and particularly with reference to two lines on the plat which are marked Line "A" and Line "B" which are also used as reference lines in the description of the property thus described in the deed.
Motions for new trial were filed, amended and overruled after a hearing, all grounds of which amount to general grounds or elaborations thereof. In addition the petition was amended several times before trial, and the defendants filed general and special demurrers which were renewed after each amendment and also objections to the allowance of the amendments. The exceptions are to the overruling of these demurrers and objections and to the overruling of the amended motions for new trial. However, by brief, counsel for the plaintiffs in error have expressly abandoned all assignments of error other that the one on the overruling of the amended motions for new trial.
The evidence on the trial is in conflict as to the location of the right of way of the main highway and the connecting or access roads, and the boundary between the plaintiff's property and that purchased from him for highway purposes. In particular the Highway Department claims Line "B" used by the engineer for the plaintiff in his measurements was not the center line of this frontage or access road and that the evidence does not support the verdict. However, the testimony of the engineer as to the location of Line "B" which he testified was the center line of the access road and used to make his measurements for the boundary along some of the property and from which he determined that the proposed highway fence was being constructed so as to encroach upon the plaintiff's property, while controverted by the testimony of the engineers for the Highway Department, was sufficient for the jury to make a decision in favor of the plaintiff. Consideration of the plats discloses that they are not all in the brief but referred to as attached to the amended petition as exhibits. Brief examination of these plats as well as the single plat submitted as an exhibit by the defendants prevents this court from ruling that the evidence demands a finding for the defendant, although had the evidence been presented in such a way that the measurements of the petitioner's witnesses were completely refuted such could be done. While resembling each other, the plat attached to the deed and as an exhibit to the amended petition and the plat which the highway witnesses testify is the same, are not the same because certain additions or changes are apparent thereon, hence we refuse to reverse the lower court on this evidence alone. But even so, there was other evidence as to other portions of the boundary and conflicting evidence as to the drainage easement, and if there is any evidence to support the verdict it will not be reversed on the general grounds alone.
Judgment affirmed. All the Justices concur.