Opinion
(Filed 25 February, 1910.)
1. Issues Submitted — Harmless Error.
Though the court refused correct issues tendered by defendant, if it appears that the error was harmless, the result will not be disturbed on appeal.
2. Trespass — Issues — Evidence.
This action of trespass was correctly made to turn upon the location of a certain line, and as there was plenary evidence of trespass by defendant, there was no error in rendering judgment against him upon the issues, which were clearly and fairly submitted to the jury.
APPEAL from Ward, J., December Term, 1909, of BEAUFORT. (753)
Ward Grimes for plaintiff.
Small, MacLean McMullan for defendant.
Issues tendered by defendant:
1. Is the plaintiff the owner and in possession of the land in controversy?
2. Has defendant entered and trespassed thereon, as alleged?
3. If so, what damage has plaintiff sustained thereby?
Issues submitted by the court:
1. Is the plaintiff the owner in fee and entitled to the possession of the land located on the plat between the red and green lines? Answer: "Yes."
2. Did defendant enter on said land and cut timber and carry off, as alleged? Answer: "Yes."
3. What are plaintiff's damages therefor? Answer: "$21.21."
From the judgment rendered, the defendant appealed.
Strictly speaking, the issues tendered by defendant were the correct issues arising upon the pleadings in this case, but we are unable to discover that any harm came to defendant because the first issue, as formulated by him, was not submitted.
The defendant tendered certain prayers for instruction, and those of them given by the court made the case turn solely upon the location of the Dowty or Gurganus line and recognize the fact that the plaintiff's land is on one side and defendant's land on the other side of that line.
No point is made that there is no evidence of trespass by defendant on plaintiff's side of the line as located by the jury, the evidence as to that being plenary.
The matter in controversy was brought down to the location of the Dowty and Gurganus line, and the jury so instructed. This was submitted to the jury fairly and clearly, and we find no merit in the exceptions to the evidence or the charge.
No error.
Cited: S. c., 153 N.C. 17.
(754)