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Trespass_logging_authorized by one of several owners_double damages inapplicable
Defendant was not a trespasser when he cut and removed timber from property owned by
tenants in common and was not liable for double damages under N.C.G.S. § 1-539.1 where he
had contracted with one of the tenants in common to harvest timber from the property.
Lee, Hancock and Lasitter, P.A., by Moses D. Lasitter, for
plaintiffs-appellants and third-party defendants-appellants.
Chestnutt, Clemmons, Thomas & Peacock, P.A., by Gary H. Clemmons, for defendant/third party plaintiffs-appellees.
No brief filed for third-party defendants-appellees Dal W. Mitchell, Dal A. Mitchell, William P. Mitchell, Jr., Emmitt G. Mitchell, Aaron C. Mitchell, Edna M. Warner, Preston Mitchell, Jr., Clifton Mitchell, Angela M. Cowell, Rachel M. Lee, Mattie M. Speights, Winifred Nelson, Lizzie D. Mitchell, and Clifford Mitchell.
Ed S. Mitchell, Jr., Hattie B. Mitchell, Evelyn M. Snead, and Rosa M. Sutton (plaintiffs) appeal the trial court's ordergranting James E. Broadway t/a James E. Broadway Logging's (defendant) motion for partial summary judgment and denying plaintiffs' motion for partial summary judgment. We affirm.
In Matthews v. Brown, this Court held the trial court erred
when it granted the plaintiffs double damages under N.C. Gen. Stat.
§ 1-539.1. 62 N.C. App. 559, 561, 303 S.E.2d 223, 225 (1983). We
In order for this statute to apply, two requirements must be met. The defendant must: (1) be a trespasser to the land and (2) injure, cut or remove wood, timber, shrubs, ortrees thereon or therefrom. In this case, the first part of the test has not been met. In no way was Georgia-Pacific a trespasser; it had a legal right to be on the land under the contract and the assignment. There is no evidence Georgia-Pacific cut any timber outside the boundary described in the timber deed.
The elements of trespass include:
1. That the plaintiff was either actually or constructively in possession of the land at the time the alleged trespass was committed.
2. That the defendant made an unauthorized, and therefore an unlawful, entry on the land.
3. That the plaintiff suffered damage by reason of the matter alleged as an invasion of his rights of possession.
Matthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952) (internal citations omitted).
Here, plaintiffs contend defendant was a trespasser on their land because Dal W. Mitchell did not have authority to act as an agent on plaintiffs' behalf to grant defendant entry onto the property. Plaintiffs also assert a tenant-in-common may not bind his co-tenant by any act with relation to the common property not previously authorized or subsequently ratified. Plaintiffs contend, [o]nly a person who owns the property in fee, or a person with authority to act as an agent of co-tenants, can give valid permission for another to enter upon the property.
Defendant entered into a binding contract with Dal W. Mitchell to harvest and remove timber from the property. The contract provided:
The buyer, its successors and assigns, their agents and employees, shall have the right of,ingress and egress in, to, on and over the lands hereinabove described and the adjoining land of seller, to a public road for the purposes of doing any and all work necessary to complete the harvest of said timber.
Dal W. Mitchell warranted in the contract that he owned good and sufficient title to the subject property located in Deed Book 309, Page 39 of the Craven County Registry. Defendant relied on Dal W. Mitchell's representation that he was the bonafide owner of the property. In his affidavit, defendant stated:
[t]hat Dal W. Mitchell represented to me that he was one of several owners of the tract of land upon which timber was to be cut, and was acting for the other individuals who had ownership interests in the property.
. . . .
I asked for written documentation showing his ownership interest in the property. Dal W. Mitchell informed me that he had paid the taxes on the property, and showed me the tax receipts, which indicated he had paid the taxes on the property to be cut.
In Jones v. McBee, our Supreme Court stated:
[t]he possession of one tenant in common is the possession of the other; each has a right to enter upon the land and enjoy it jointly with the others. If one tenant in common destroys houses, trees, or does any act amounting to waste or destruction in woods or other such property, the other tenant may have an action on the case against him. But he never can, in any event, have an action of trespass quare clausum fregit against his co-tenant. The other defendants were not trespassers, as they entered and acted by the direction of Meredith.
. . . .
This Court has held that where an action is
brought to recover for damages for logs cut
and removed by one in the honest belief on thepart of the trespasser that he had title to
them, the measure of damages is the value of
the logs in the woods from which they were
taken, together with the amount of injury
incident to removal.
222 N.C. 152, 153-54, 22 S.E.2d 226, 227 (1942) (internal quotations and citations omitted) (emphasis supplied).
Dal W. Mitchell, who held an ownership interest in the property as a tenant-in-common, gave defendant consent to enter onto the property for the purpose of harvesting and removing timber. Defendant had a legal right to be on the land under the contract. Brown, 62 N.C. App. at 561, 303 S.E.2d at 225. Defendant was not a trespasser and is not subject to double damages under N.C. Gen. Stat. § 1-539.1. This assignment of error is overruled.
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